Volume 13 — Sergeant & Rawle's Pennsylvania Reports

IN ERROR. Writ of error to the Court of Common Pleas of Berks county, in which the plaintiff in error, was plaintiff below. This suit was originally an action on the case, brought by Henry Christman against Isaac Christman, executor of Frederick Fritz, deceased. It was arbitrated on the 29th of November, 1822.

<p>IN ERROR.</p> <p>In the Court of Common Pleas of Lebanon county, to which this writ of error issued, judgment was rendered in favour of the defendant in error .and plaintiff below, Christian Rohr, against the plaintiffs in error and defendants below, John Weidman, John Philips, Daniel M‘Bride, James Philips,. and Thomas M‘Rinney, in pursuance of a verdict.</p> <p>The writ was a capias to answer for entering the plaintiffs’ close, and cutting down trees. The declaration, after reciting the writ, set forth the complaint to be for cutting down the trees mentioned in the writ, omitting the entry into the close. The defendants pleaded not guilty, with leave to give title in evidence. Shortly before the trial, the defendants asked leave to alter their plea, by withdrawing the plea of not guilty with leave, &c., and substituting instead thereof, the plea of liberum tenementum: which the court refused to do.</p> <p>The defendants, to show title in them, gave in evidence a certified copy of the following original applications remaining in the land office, with the certificate of the deceased Judge Yeates annexed, (which was read by consent,) that the originals were in the handwriting of William M‘Cullouch.</p> <p>i(June 24th, 1766. — -William Godsgrace applies for three hundred acres of land on Manady creek, adjoining the land of the widow Bell, and the mountain in Hanover township, Lebanon county.</p> <p>“ Samuel Brown applies for two hundred and fifty acres, the west side of Indiantown creek, adjoining the lands of James Wilson, John Brown, and Jindrew Brown, in Hanover township, Lebanon county.</p> <p>Received seven shillings, as fees.</p> <p> William M‘Cullouch. </p> <p>“ June 24th, 1766. — Thomas MiCullouch applies lor three hundred aeres of land adjoining the land of John Prunner, Peter Grub, and the mountains in Hanover township, Lebanon county.</p> <p>“ Thomas Kopenheffer applies for two hundred and fifty acres of land, adjoining the land applied for by Thomas M‘Cullouch, Moses Vance, and Daniel Jtíosser, in the same township and county.</p> <p>Receiyed seven shillings, office fees.</p> <p> William MCullouchF </p> <p>The court were requested by the defendants, to charge the jury-on the following points:</p> <p>1. That the application made by William M‘Cullouch, on the 34th of June, 1766, in the name of Thomas Kopenheffer, was for the use of William M‘Cullouch, and belonged to him; he having paid the office fees, and Thomas Kopenheffer having bought and accepted a deed of conveyance for part of the same land.</p> <p>Answer of the court. This is a matter of fact. The mere putting the application in the office by M‘Cullouch, is not in itself sufficient. It was put in in the name of Kopenheffer, and the presumption would be, that it would be for Kopenheffer’s use, and this must be rebutted by facts; such as MiCullouch,s getting the survey made and returned for himself. Thomas Kopenheffer, at the time the deed was executed, got no right from M‘Cullouch: he had none to convey: the deed is dated the 35th of February, 1766, and the date of the application — the 34th of June, 1766; and whether the deed was accepted or not is a matter of fact.</p> <p>3. That the said application, together with the survey made thereon by Jasper Scull, which was received in the land office, and accepted on the 3d of September, 1770, vested a title to the land in dispute in William M‘Cullouch: and that as against the title produced by the plaintiff, which commenced with a warrant, dated the first day of July, 1784, the defendant is entitled to the land and to the verdict of the jury.</p> <p>Answer. This depends on facts. The application and survey vested no title in M‘Cullouch, unless the survey was made for him.</p> <p>3. That the deed of the 1st of February, 17S7, from William, M‘Cullouch to Mathias Henning, and the deed from Mathias Henning to the defendant, dated the 12th of October, 1802, vested the title of William M‘Cullouch in the defendant; and that title being older and better than the title of the plaintiff, the defendant is entitled to a verdict, and that a mistake in the recital of a d*ed cannot in any manner affect the operative part containing the conveyance.</p> <p>Answer. The title of MiCullouch by the deeds vested in the defendant: but whether, that title is older and better than the title of the plaintiff, depends upon the fact of the survey under the application, having been made for the use of M‘Cullouch. The law, with regard to a mistake in the recital, is correctly stated.</p> <p>4. That if the jury believe that no actual survey was made upon the ground, under the warrant of the 1st of July, 17S4, however the case might be between the commonwealth and the plaintiff, yet that paper survey was absolutely void as against Mathias Henning, and against the defendant, who now holds his title to the land in dispute.</p> <p>Answer. Granted — but the return of the survey into the office is presumptive evidence that it was made on the ground.</p> <p>5. That although if a survey has been duly made under legal authority, and the land surveyed remains open to purchasers, a warrant coming afterwards to the hands of the deputy, may be applied by him to the survey already made, without running and marking the lines anew; yet as the land in this case had been appropriated by the application of William, M‘Cullouch, and the survey and return thereof under it, the land did not remain open; and, so far as it respects the lands in dispute, the application by the deputy surveyor of the survey, by which they were appropriated to the warrant of the 1st of July, 1784, was illegal, and could vest no title in the warrantee against the owner of the disputed land.</p> <p>Answer. If a survey has been duly made under legal authority, and the land surveyed remains open to purchasers, a warrant coming afterwards to the hands of the deputy surveyor may be applied by him to the survey already made, without running and marking the lines anew. The party for whom a survey is made, may abandon his right and throw the land open, and this is a matter of fact in this case.</p> <p>6. That the deputy surveyor had no authority, under the warrant of the 1st of July, 1784, to survey the land in dispute, as it' had been before surveyed and appropriated under MiCullouch,s application, and that, as against the defendant, such survey is of no validity.</p> <p>Answer. This is the law — if there be no abandonment.</p> <p>7. That as soon as the survey was made upon the ground under William MtCullouch’s application, the law cast the possession of the land upon him, so that any entry on the land thereafter would have been a trespass against him, or those claiming under him.</p> <p>Answer. Granted — if the survey were made for M‘Cullouch.</p> <p>8. That in this case, admitting the truth of all the testimony given on the part of the plaintiff, there has been no such evidence of an adverse possession, as to bar the right of the defendant to the lands in dispute, and therefore this part of the plaintiff’s case is not made out. In order to constitute such an adverse possession as would bar the defendants’ right, there must be a real and substantial enclosure, an actual occupancy, and apossessiopedis, which is definitive, positive, and notorious.</p> <p>Jlnswer. In ordertoconstitutesuchan adverse possession aswould bar the defendants’ right, there must be a real and substantial enclosure, an actual occupancy, a possessio pedis, which is definitive, positive, and notorious — and this is a matter of fact.</p> <p>9. That if the defendant has the title, the plaintiff cannot maintain this action, even if he had the possession.</p> <p>Jlnswer. Granted.</p> <p>10. That any thing which has been s,aid respecting a trial which took place at Harrisburg, between Conrad Weaver and the plaintiff, can have no influence on the determination of this cause. It was a transaction to which John Weidman was no party. The title of the parties, as now produced, must be tried, and the determination of this cause must depend upon that title, and that alone without reference to any other trial.</p> <p>Jlnswer. Granted.</p> <p>11. That the survey made upon the ground by virtue of the application of William 3í(Cullouch, and returned into the office, and accepted on the 3d of September, 1770, was notice to all mankind of William M‘Cullouch’s title, and he was bound to give no other notice of it; and that as there is no proof that M‘Cullouch ever knew or was present at, much less consented to a new survey being made upon his land, that survey, as against him, is absolutely void, the former survey being full notice, both to the warrantee and deputy surveyor.</p> <p>Jlnswer. Granted — if the survey was made for M.iCullouch; whether it was or was not is a matter of fact.</p> <p>12. That the circumstance of the deed from Cull ouch to Henning, and from him to Weidman, not being recorded, should have no weight in the cause in favour of Kohr, who does not claim under any of them.</p> <p>Jlnswer. Granted.</p> <p>The errors assigned by the plaintiffs in error were the following:</p> <p>1. The writ and recital of it contained in the declaration,, are both in trespass quare clausum fregit; but the declaration itself contains no allegation, either that the defendants broke and entered the plaintiff’s close, or that the place in which the alleged trespass was committed belonged to plaintiff.</p> <p>2. The court should have permitted the defendants to alter their plea or defence, by substituting the plea of liberum tenementum for that of not guilty.</p> <p>3. The court erred in not answering the first point in favour of the defendants, in not giving it a full answer, and, so far as they have gone, in not answering it according to law.</p> <p>4. They erred in that part of their answer to the first point, in which they declare, “ that the mere putting of the application in the office by MiCullouch, is not in itself sufficient. It was put in in the name of Kopenh'effer, and the presumption would be, that it was for Kopenheffer’s use,” &c.</p> <p>5. The court have not fully answered the second, third, fourth, fifth, sixth, seventh, eighth, ninth, tenth, eleventh, or twelfth points of the defendants; — and, so far as they have proceeded in their answers, they are erroneous.</p> <p>6. They have violated the right of the defendants to have the instructions of the court delivered in an intelligible manner to the jury, upon points pertinent to the issue, by annexing to each of the defendants’ fourth, sixth, ninth, tenth, and eleventh points the word “ granted,” without further explanation.</p>

certiorari. Certiorari to the Court of Quarter Sessions of Lancaster county, to remove the proceedings in the case of a road from Mrs. Cully’s fishery to M’Call’s ferry, on which a report was made by four of the five viewers appointed by the court, in favour of the road, and a draft of the road with its courses and distances, was returned to the court. On the face of this draft the words, “ all unimproved,” were written.

IN ERROR. In the Court of Common Pleas of Schuylkill county, a verdict and judgment were rendered in this cause in favour of Lazarus Hackeriberg, the .plaintiff below, against Simon Morberger, the defendant below and plaintiff in error, for the sum of one hundred and six dollars and eighty-four cents, and the cause was now removed by writ of error.

IN ERROR. This writ of error was to the District Court for the city and county of Lancaster, where Mary Mingle, the plaintiff below, obtained a verdict and judgment against John Shenk, the plaintiff in error, for the sum of 1016 dollars damages, on the last count in the declaration.

IN ERROR, Writ of error to the District Court for the county of Dauphin.

<p>IN ERROR.</p> <p>Error to the District Court for the city and county of Lancaster.</p> <p>Replevin brought by George Smith, the plaintiff below, and plaintiff in error, against Samuel Jlnlerim, who made cognizance of the taking as a distress for rent, as bailiff of Adam Gochenauer, Henry Resh, and Samuel B. Moore. The pleas were non, demiserunt, riens in arrear and payment with leave, &c. Replication, non solvit and issues.</p> <p>The defendant gave in evidence an assignment of the premises from Benjamin Hart to Gochenauer, Resh, and Moore, and also a lease or agreement under seal between them and the plaintiff Smith, dated the 8th of December, 1817, by which Smith, “agreed to take the property late of Benjamin Hart, which he then occupied at Ml Call’s ferry bridge for one year from the 1st of April, 1818, for which he was willing to pay the sum of three hundred and forty dollars, payable quarterly in advance: said Smith to have fire-wood on the premises, but not to cut any green or thriving timber.”</p> <p>The plaintiff then offered to prove, that the property demised was a tavern house with its appurtenances; that what constituted its chief and almost its only value, was the erection of the M’Call’s ferry bridge over the river Susquehanna, immediately adjoining the said public house. That an ice-flood in the river on the 3d of March, 1818, carried away the said bridge, in consequence of which all the travelling which supported the said public house ceased, and it became entirely useless to the plaintiff, for the only purpose for which it was rented: that within a few days after thé 3d of March, 1818, and before the 1st of April, 1818, George Smith complained to Samuel JB. Moore, one of the assignees of Benjamin Hart, and informed him, that since the bridge had gone he was not able to pay ro much rent, and that he would immediately leave the possession of the said premises if they did not make the rent lower. The said Samuel B. Moore requested him to remain, acknowledged his request was reasonable and promised it should be complied with, and the rent should be reduced, and that in consequence of this assurance the said George Smith did remain in the possession of the said premises.” To the admission of this testimony the defendant objected; the court sustained'the objection, and the defendant excepted.</p> <p>There had been an award in favour of the defendant for three hundred and two dollars eighty-eight cents, from which the plaintiff had appealed, and the verdict and judgment in favour of defendant were for two hundred and. seventeen dollars eighty-five cents.</p>

<p>The court on reversing a judgment and execution will not suspend the award of restitution, for the purpose of directing an issue to try the merits.</p> <p>But if land of the defendant has been sold, bound as well by the judgment reversed as by subsequent judgments, the court in awarding restitution of the money levied by the plaintilf, wifi order it to be brought into court, and paid first to the subsequent judgment creditors and the residue to the defendant.</p>

in error. Error to the Court of Common Pleas of Dauphin county.

<p>Though the writ be in debt, the declaration in assumpsit, the plea non assumpsit, and the verdict find a certain sum in debt and another in damages, the proceedings are good, under the act of the 21st of March, 1806.</p> <p>The Court may mould such verdict into form.</p> <p>Though there be two declarations, and one omit the damages, yet the verdict and judgment are good.</p> <p>If a second declaration is filed, the court, on error brought after verdict, will presume leave"of the court was granted, though nothing appears on the record to show it.</p> <p>It is error in the judge not to answer a material question of law, which he is requested to do.</p> <p>Though the plaintiff before arbitrators concedes to the defendant a credit for illegal lottery tickets, which is allowed in the award, yet, if the defendant appeals, * the plaintiff1 is not on the trial bound by such concession.</p>

<p>Thus was an appeal from a decree of the Orphans’ Court of Yorle county, on the account of George Barnitz, Esq., executor of Margaret Salome Spangler, deceased,</p>

<p>Under the twenty-sixth and seventy-seventh sections of the act of the 26th a? March, 1821, for the improvement of the state, when the remaining six miles of the road were finished, the surplus of the fourteen thousand dollars subscribed by the state, that remained after paying the advances of the directors, is to be paid to persons who did work before the passing of the act, in preference to those who worked afterwards in finishing the six miles of the road.</p>

IN ERROR. Error to the Court of Common Pleas of Lancaster, in an action of replevin, brought by Emanuel Forney, the defendant in error and plaintiff below, against Archibald D. Warren, the plaintiff in error and defendant in the Court of Common Pleas. The defendant acknowledged the taking of the plaintiff^ goods, and made cognizance as bailiff of Joel Lighter and Samuel Dale, by whose command he distrained for rent in arrear.

<p>The right to an action for an excessive distress, does not pass by an assignment under the insolvent debtor’s act.</p> <p>The tenant, on whose premises the property of a stranger is seized for rent, is liable over to the stranger.</p> <p>The record of the transcript of a justice’s docket entered in the prothonotary’s office, is not evidence of the proceedings before the justice, to show a former recovery.</p> <p>A recovery of the surplus money, for which goods seized for rent sold beyond the amount of rent, is no evidence in a suit for an excessive distress.</p>

IN ERROR. By the return of a writ of error to the Court of Common Pleas of York county, in this case, it appeared, that this suit was brought in that court to April Term, 1S21, by John Gonler, the defendant in error, against Michael Zerger, by capias, in debt by assumption, for work and labour, &c. not exceeding five hundred dollars, to which the sheriff returned cepi corpus, and bail bond.

<p>Query, Whether the landlord can distrain for rent reserved, payable in advance, immediately on its becoming due by the terms of the lease.</p> <p>Generally speaking, where a tenant holds over after the first year, the law implies an agreement by him to pay the same rent, and at the same time, which he agreed to the first year.</p> <p>But, if the lease for the first year contain many collateral matters, on each side to be performed, that can only be performed in the first year, it does not follow that the law implies an extension of it to the second year. .</p> <p>The return of the sheriff cannot be contradicted by either party, in the action in which it is made.</p>

<p>IN ERROR.</p> <p>Ejectment in the Court of Common Pleas of York county, brought by Robert Nebinger against George Upp, in which the jury found a special verdict, and judgment was rendered thereon in favour of the defendant, Upp, which was removed to this court by a writ of error.</p> <p>The special verdict stated the facts of the ease as follows:</p> <p>On the 28th day of June, 17S9, Jlndrew Nebinger was seised in fee of the premises, and on that day made his last will and testament in writing, which was duly proved, &c., and died seised on the 15th of October following. By the said will he made the following devises:</p> <p>“ Item. I give and devise unto my son, George Nebinger, all that eastern moiety or equal half part of tho lot of ground whereon I now dwell in York town, adjoining Baltzer Spangler and others, together with all buildings~and improvements thereon being, with the appurtenaneds. I also give and devise unto my said son, George Nebinger, all that lotv or piece of meadow, situate on the south side of the great road leading from York town to Wright's ferry in Freystown, containing one acre with the appurtenances. Further, also, I do give and devise unto him, my said son George Nebinger, part of another piece of meadow and upland, situate on the north side of the said road leading from York town to Wright’s ferry, adjoining lands of John Hoy and others, to be laid off and divided from the whole piece in the following manner: viz. Beginning at a white oak in Martin Farmer's land [hence by courses and distances to the place of beginning,] containing four acres and one half of an acre, and twenty-four perches of land; to have and to hold the said eastern moiety of my sard lot of ground, the one acre of meadow adjoining the road in Freystown, and the said four acres and a half of an acre, and twenty-four perches of meadow and upland, with all the improvements and appurtenances to the same, respectively belonging, to my son George Nebinger, his heirs and assigns, to his and their only proper use and behoof for ever; together with the right of all the water in the race four days in every week for ever, that is to say, Thursday, Friday, Saturday, and Sunday, without interruption of any person whomsoever: provided always, nevertheless, that if the wife of my said son George, to wit, Anne Nebinger, should happen to survive him my said son, then and in such case the said premises above devised, and every part thereof, with the appurtenances, shall be and enure to and for the only proper use and behoof of the heirs or issue lawfully begotten on the body of the said Anne, and of the children lawfully begotten on the body of any other woman he may marry, and their heirs and assigns for ever, as tenants in common, and not as jointenants, and for want of such issue, then the same, and every part thereof, shall be and enure to the issue lawfully begotten on the body of my daughter Catherine, intermarried with George Weller, jr., and to their heirs and assigns, as tenants aforesaid.</p> <p>ii Item. I give and devise unto my daughter Catherine, intermarried with George Weller, all that western moiety or equal half part of the lot of ground whereon I now dwell, with all the buildings and improvements thereon, and the appurtenances. I further also give and devise unto her, my said daughter Catherine, all that remaining part of my meadow ground, on the north side of the great road leading from York town to Wright’s ferry, beginning at a post, [and by courses and distances to the place of beginning,] containing three acres and a half of an acre, and ten perches; to have and to hold the said western moiety of the said lot of ground, and other piece of meadow and upland, with the appurtenances, unto my said daughter Catherine Weller, and to her children lawfully begotten on the body of her my said daughter Catherine, and their heirs and assigns for ever; together also with the use of all the water in the race three days in the week, that is to say, every Monday, Tuesday, and Wednesday for ever. In consideration whereof, I do order, that the said George Weller and my daughter Catherine, or their heirs, do provide for my said wife, Anne Maria, a comfortable dwelling-room with him or them, with the convenience of baking her bread, and sufficient fire wood delivered at her dwelling during her natural life. And it is my most positive will, and I do hereby order, that my son George shall keep in repair the race or water course, so far as his meadow extends, so that neither shall interfere with the others meadow and right. Yet that George Weller may have the right to drain the water for the time limited, and further, that they my said son George Nebinger and George Weller do jointly keep in repair the race or water course, from the end of the large meadow up so far as my right of the race extends in Freysiown, from time to time for ever, AU the rest and residue of my estate whatsoever, I order shall be sold at auction or public-vendue, within four weeks after my decease, by my hereinaftei#. named executors, or the survivor ofdhem, hereby giving thetotóill pSwer so to do, and the moneysjgising therefrom, with t|flmái4¿jj^|a of fifteen hundred pounds-Ker my wife’s decease, ifluit aiMffiqueath unto my son G eorgewtfebinger, and my dauaHfr djHrenree Weller, to be equallySvided among them, shaSSñd sM§ alike, or among their legal reSesentatives, which I gitlBfthsrn 'Wm ever, my just debts, funeral Hkpenses, and incidental Jprges bé||g first satisfied. My further will also is, that if my wife Anné Maria do marry again, that then each and every article and thing herein before given her, shall be absolutely null and void,-and in lieu of which, and of her dower and thirds, do give and allow her the yearly interest of the sum which will amount to thirty pounds per annum, which shall be paid to her in manner aforesaid, together with the said sum of fifty pounds and twenty-four silver dollars aforesaid. My old desk I do give unto my daughter Catherine aforesaid for ever. Lastly, I do hereby nominate and appoint my wife Anne Maria Nebinger executrix, and my loving George Nebinger, and trusty friend George Philip Zigler, executors of this my testament and last will, hereby revoking all former wills by me heretofore made, allowing this only to be my last testament and will. In witness whereof, &c.” * '</p> <p>At the time of the making and publishing the will above mentioned, George Nebinger, the son of the testator in the said will mentioned, was intermarried with Ann Nebinger, in the said will mentioned; the said George Nebinger, on the death of the testator, entered upon the premises in the said will mentioned, being the same in the writ in this case mentioned, and at April term, 1786, in the Common Pleas of Work county, suffered a common recovery of the said premises, to the use of himself in fee. The said George Nebinger and wife, on the first day of May, 17S6, by deed of bargain and sale, conveyed the said premises to Daniel Spangler in fee, with general warranty, in consideration of four hundred pounds, which was the full, value thereof, and Daniel Spangler, after having built a large house on the said premises, and otherwise greatly improved the same, died intestate, seised of the same, on the 15th of December, 1812, and the administrators of the said Daniel Spangler, by virtue of an order of sale made by the Orphans’ Court of York- county aforesaid, sold and conveyed the said premises to the defendant in this suit, which sale was confirmed on the 14th of December, 1S13, by the said court, and the defendant in this suit was-in possession of the premises when this suit was commenced.</p> <p>George Nebinger, the son of the testator, had issue on the body of his said wife Anne, in the will of the testator mentioned, six children, as follows, to wit: Andrew, the eldest son, Mary, Anne, and Rebecca, who are all above the age of thirty-one years. George, aged thirty years, and Robert, the plaintiff in this suit, who was born in April, 1796, who are all still living, and wore born after the making' of the will of Andrew Nebinger, the testator above mentioned.</p> <p>George Nebinger, the son of the testator, on the 28th of June, 1796, died leaving his wife Anne aforesaid, mentioned in the will of the testator, to survive him, who is still living, seised of certain real estate in York county, to wit: two lots in Stunesiown, which were afterwards appraised by order of the Orphans’ Court of York county at six pounds, and decreed to Andrew, his eldest son: a share of the valuation money was ordered by the said court to be paid to the plaintiff, and was duly paid to his guardian.</p> <p>“ Letters of administration on the personal estate of the said George Nebinger aforesaid, were after his death granted to Ann Nebinger, who, on the settlement of her administration account, on the 3d of October, 1799, had abalance in her hands of seventy-seven pounds.</p> <p>After the decease of George Nebinger, the son of the testator, on the petition of his eldest son, Andrew Nebinger, to the Orphans’ Court of York county, the two pieces of meadow ground in the will of the testator mentioned, were appraised as the estate of George Nebinger, the son of the testator, and decreed to the petitioner, Andrew, son of George, and a share or purpart of the valuation money was paid to the guardian of the plaintiff in this suit.</p> <p>The defendant, and those under whom he claims, have been in possession of the premises mentioned in the writ since the date of the conveyance to Daniel Spangler aforesaid, and have held the same adversely to the right of the plaintiff.</p> <p>The case was argued by</p>

<p>Awards .at common law are to be construed according to the iutent of the parties’, and so as to quiet all differences.</p> <p>Arbitrators may give damages up to the date of the award, if such is the general intent of the parties apparent in the submission.</p> <p>If this intent were doubtful, the presumption is, where damages are given up to the date of the award, that none were sustained after the time of the submission.</p> <p>Arbitrators at common law cannot give costs, unless expressly authorized.</p> <p>Award of a certain sum to the plaintiff, “ which is to be in full of all damages and costs to this date,” &c : it appearing by the' submission that the costs of a suit pending between the parties were agreed to be paid by the plaintiff, and the recital of the award, stating’ that the question of damages only was submitted, held, to mean that damages only were given, in full discharge of all claims by the plaintiff.</p> <p>Ambiguous language in awards at common law is to be construed so as to support the award.</p>

CERTIORARI. This certiorari issued to remove the proceedings in the Court of Quarter Sessions of Lancaster e&unty, to lay out a road from John Md Cord’s house in Bart township, to a point near Slocum’s tavern in Sadsburhj township. The exception to them was, that the viewers who laid out the road, had made no reference to the improvements in the draught returned with the report.’ The court below, however, confirmed the report.

<p>The regular mode of procuring a return of bills of exceptions, by a judge whose office has expired, is by certiorari, directed to him..</p> <p>But the court, in its discretion, may impose terms on a .party applying for the writ.</p> <p>In dower, where the defence is, that previous to the marriage the lands had been given by the deceased to his son, held, that the declarations of the deceased that he had not so granted the land, are not admissible to rebut evidence of his declarations that he had: unless they were part of the same conversation given in evidence.</p> <p>The fact of a release by such son of all his right to other lands of his father, in pursuance of an award in a suit against him by the other children and widow, is evidence, — but not a recital in it that the land was given to him by the father.</p> <p>Dower is maintainable in Pennsylvania for the wife’» third m land, held by a person claiming by title adverse to his heirs, but supposed to have been the estate of the husband.</p> <p>A tenant for years, to whom notice is given on a writ of dower against several defendants, is not to be considered a defendant.</p> <p>Additional errors not assignable after specification, on mere technical points.</p>

IN ERROR. This was a writ of error to the Court of Common Pleas of Lancaster county, in an action in which Jacob Weitzel, the defendant in error, was plaintiff below, and Christopher Weidman, the plaintiff in error, was defendant below, and there was a verdict in favour of Weitzel for one hundred and fifty-one dollars twenty-two cents, on which judgment .was rendered. The case was argued by

<p>A declaration in trover for rye, stating that the plaintiff was lawfully possessed of the rye, which he lost, and which came to the hands of the defendant, by finding, and that the defendant, well knowing the said rye to he the property of the plaintiff] converted it to his own use, is good after verdict.</p>

<p>The remedy of the prothonotary for his fees, is against the party for whom the services in a suit are done, in the same manner as for other debts.</p> <p>Where the amount does not exceed one hundred dollars, an action may be brought before a justice.</p> <p>A prothonotary lias no right to issue an execution for his fees, as there is no judgment rendered for him.</p> <p>The fees are not chargeable to the attorney, unless he becomes security.</p> <p>The plaintiff in error, whether plaintiff or defendant below, is to be looked to for the prothonotary’s fees on affirmance.</p> <p>The prothonotary cannot recur to the recognizance given by the plaintiff in error for his fees, should the plaintiff in error prove insolvent: but, if the recognizance is sued, the court will take care that these fees are secured, so far as they are covered by the recognizance.</p> <p>Where the judgment is reversed in the Supreme Court, and no venire facias denovo awarded, the prothonotary of the Supreme Court cannot direct the prothonotary below to issue execution for his fees.</p>

IN ERROR. Writ of error to the District Court for the city and county of Lancaster. The defendant in error and plaintiff below, Frederick Gram, brought this action of debt against the plaintiff in error and defendant below, Conrad Zeigler, to recover a sum not exceeding half the debt or damages adjudged, being the penalty imposed by the act of the 13th of April, 1791, Purd. Dig. 306, for not entering satisfaction of a judgment after it had been discharged.

This was an appeal by Jacob Heckert, from the decree of the Orphans’ Court of York county, on the accounts of George Barnitz, executor of Margaret Salome Spangler. The appeal was quashed by this court, in June, 1835, because the appellant had not taken the oath prescribed by the act, that the appeal was not intended for delay. {Ante, 48.j

IN ERROR. This was an action of debt, brought by John Morton, for the use of William M‘Glaughlin, against Alexander Morton, on a single bill, given by Alexander Morton to John Morton, The bill was assigned by John Morton to William M-Glaughlin. The defendant pleaded payment to John Morton, without notice of the assignment, and offered in evidence, to prove the payment, the receipt of John Morton, given after the assignment.

<p>Where arbitrators award in favour of the defendant, and the plaintiff appeals, if he recovers, he is entitled to the costs which he paid on entering his appeal, as well as those which accrued since.</p> <p>The rule is the same where the award is for a sum in favour of the plaintiff] and he app eals, and recovers a greater sum.</p>

<p>IN ERROR.</p> <p>Ejectment in Centre county, in which Jacob, Joseph, and Benjamin Gratz were the plaintiffs, and Philip Benner the defendant. The plaintiffs in error were the plaintiffs below.</p>

IN ERROR. Error to the Court of Common Pleas of Mifflin county, in •account render, brought by Samuel Burge against James Montgomery. The case was arbitrated under the act of the 20th of March, 1810, and an award made in favour of the plaintiff, but there was no account annexed to the report, as directed by the act of assembly of the 30th of March, 1821. This was now assigned for error.

<p>It is sufficient evidence of an actual survey, to show that any part of it was made on the ground.</p> <p>When a surveyor, in his return, calls for an old line of an adjoining survey, it is not necessary to show that such survey was returned.</p>

<p>IN ERROR.</p> <p>Error to the Court of Common Pleas of Lycoming county.</p> <p>The plaintiff in error was plaintiff below. It was an action of debt on a bond, in which Thomas Grant, deceased, the defend,ants’ testator, was bound as security for one Martin to Josiah Haines, deceased. Issue was joined on the plea of payment. The bond was dated the ISth of April, 1794. Several partial payments had been made, the last of which wás on the 39th of March, 1797. The action was brought to December term, 1821, upwards of twenty-three years from the last payment. It was proved, that pending the action, and a short time before the trial, there was a conversation between Charles Hall, Esq., attorney for the plaintiff, and George Grant, one of the defendants, in which Hall told Grant, that “ the estate of Martin was not able to pay the debt, and that was the reason they pursued the estate of Grant’s father,” to which Grant replied, that “there was property enough of Martin’s, and, if judgment went against him, he would be able to show property of Martin’s estate.” The president of the Court of Common Pleas, in his charge to the jury, told them, that although there was'no statute of limitations applicable to bond debts, yet if twenty years were suffered to elapse without payment of any part of the principal or interest, the law would presume payment, unless there was some circumstance, such, for instance, as the acknowledgment of the debt, to take off the force of the presumption; and he left it to the jury to determine whether the presumption was rebutted, in this case, by the conversation between Mr. Hall and George Grant. To this charge the plaintiff excepted.</p>

<p>Unconnected scraps of paper, containing, as alleged, accounts of sales by an agent of articles on account of his principal, irregularly kept on their face, are not admissible as a book of original entries.</p> <p>Such evidence is to be extended beyond former limits.</p>

IN ERROR. This was a writ of error to the Court of Common Pleas of Montgomery county, in an action of trespass vi et armis, &c., brought by Daniel Montgomery, the defendant in error and plaintiff below, against Daniel Cameron and Daniel Petrikin, defendants below and plaintiffs in error. Judgment was rendered, in the court below, in favour of the plaintiff. The case was argued by .

<p>IN ERROR.</p> <p>Error to the Court of Common Pleas of Bradford county.</p>

<p>A certificate from the prothonotary, annexed to exemplification of a record, «that the paper was truly copied from the records,” imports that it is an entire copy, and not a mere extract.</p>

<p>Agreement on the 28th of November, 1811, by F.¡ to convey all his plantation in X. township, adjoining lands of .0. .B., and others, reference being had to several deeds of conveyance to F., will show the metes and bounds ; the whole tract contains two hundred and twenty-five acres, and allowance; two hundred and one acres the said F. has a patent deed for, and the remaining twenty-four he will also get a patent deed for. In April, 1812, a conveyance was made of two hundred and twenty-five aeres, more or less, and the hand money paid, and bonds given for the residue. In 1823, the vendee discovered by actual measurement, that the patented tract fell short twenty acres, and ninety perches. Held, that he is not entitled to any deduction, in a suit on bne of the bonds, for this deficiency.</p> <p>Parol evidence is admissible in such case, in behalf of the defendant, to show that at the time the deed was executed, the vendor declared to the vendee, that he had a good title to two hundred and twenty-five acres, and would warrant that quantity of land.</p>

<p>ERltOB TO THE SAME COUItT.</p>

<p>A fien facias, regularly issued, and returned by the sheriff, levied on a particular tract of land of the defendant, preserves the lien of a judgment beyond the five years, though no scire facias be issued.</p> <p>Query, Whether such lien would continue beyond twenty-one years.</p> <p>Query, Whether a fieri facias, regularly taken out, but not levied, continues the lien of the judgment beyond the five years.</p>

IN ERROR. In the Court of Common Pleas of Mifflin county, from which this writ of error was returned, John Patterson, the defendant in error, brought ejectment against the plaintiffs in error, James Montgomery, John Mooney, and Joseph Kelly, and the case being arbitrated, an award was made finding for the plaintiff “ the sum of thirteen dollars and fourteen cents, of the hand money, and fifty dollars which was to have been paid by contract on the 1st of Jlpril, 1811, and…

IN ERROR. Writ of error to the Court of Common Pleas of Bradford county, in which court a verdict and judgment were rendered in favour of the defendant. It was an ejectment brought by Andrew Erwin against Cornelius Helm,, .to recover one hundred and sixty-nine acres of land situate in Athens township, in said county, part of warrant No. 523, for two hundred and twenty-five acres, surveyed to Arthur Erwin, deceased.

IN ERROR. By the writ of error returned from the Court of Common Pleas of Mifflin county, where the plaintiff in error, Albert Lilchtenthaler was plaintiff below, the case appeared to be as follows: On the 1st April, 1818, Jacob Kline, guardian of Albert Lichtenthaler and other children of M. Litchtenthaler, deceased, leased a farm in Mifflin county to Samuel Miller, for one year at the rent of one hundred and fifty dollars per annum, and Miller entered into possession.

IN error. On a writ of error to the Court of Common Pleas of Lycoming county, in this action, brought by Joseph Snyder, and Timothy Lee, administrators of Jacob Snyder, deceased, the plaintiffs below, against Jacob Bailey, the defendant below, the case appeared to be as follows: It was an action of covenant, brought to recover the price of thirty-three acres of land, at twenty dollars an aerei Articles of agreement were executed on the 13th of June, 1812, between Snyder, in…

IN ERROR. Writ of error to the Court of Common Pleas of Lycoming county, where the plaintiffs in error were defendants below. The action was brought by James Mahaffey against the defendants as administrators of Thomas Mahaffey, deceased.

IN ERROR. In the Court of Common Pleas of Mifflin county, a scire facias issued in this case to Fugust term, 1824, by Cornelius Waldron, plaintiff below and defendant in error against William Lyon and Matthew Forsyth administrators of Robert Forsyth, deceased, on a judgment which had been recovered against the intestate. The scire facias was returned served, and at the Fugust court on motion of the plaintiff’s counsel, the court rendered judgment.

Debt in the Court of Common Pleas of Northumberland county, brought by the defendant in error, the plaintiff below, David Kelly, assignee of John Case, against the plaintiffs in error, Thomas Poke and Christopher Andrews. The suit was to April term, 1818, on a bond dated the 29th of December, 1S15, for four hundred dollars, conditioned for the payment of,two hundred dollars on the 1st of April, 1818, with interest from the 1st of April, 1817.

<p>In ejectment by a mortgagee against a judgment, creditor of the mortgagor, who bought the land under a sale on his judgment, evidence is admissible that the defendant was present at the sale, knew óf plaintiff’s mortgage (which was given before the judgment though not recorded till after,) and that the sheriff expressly sold the land subject to the mortgage.</p>

<p>Testator devised a mill and tract of land to his son, and directed that should he sell the mill or any part of the land within ten years from his decease, one half of the purchase money should be equally divided amongst the rest of his heirs, and should remain a lien on the premises. About four months previous to the expiration of the ten years, the son contracted to sell, and received a small payment on account, but in three mouths after the parties annulled this contract, and made a new agreement for the property to be completed when the son could safely convey it, which was completed after the ten years had expired: Held, that the sale was valid, and the condition not broken.</p>

IN ERROR. Error to the court of Common Pleas of Northumberland county, where there was a verdict and judgment in favour of the defendants. It was an amicable scire facias, to which the defendants pleaded judgment with leave to give the special matters in evidence. Lebo had been sheriff of the county, and the other defendants were his sureties, and judgment had been entered against them on Lebo’s official bond.

IN ERROR. Replevin in the Court of Common Pleas of Columbia county, by Caroline Weidel against William Roseberry and Henry Miller. The sheriff returned replevied by sureties and pledges. ■ The defendant William Roseberry made conuzance under Henry Miller, who avowed for rent in arrear. Replication no rent in arrear and issue. January 6, 1823, jury sworn.

<p>IN ERROR.</p> <p>Writ of error and bill of exceptions to the charge of the Court of Common Pleas of Fayette county, in an action brought there originally by Elizabeth Simmons, defendant in error, against Charles Rogers, to recover damages for a breach of promise of marriage. The case was arbitrated by the plaintiff, and an award made in her favour for the sum of four thousand five hundred dollars, from which the defendant appealed. Soon afterwards the defendant Rogers died, and his executors, the plaintiffs in error, being substituted, the cause was tried by jury and a verdict rendered for the plaintiff, for the sum of two thousand eight hundred and fifty dollars, on which judgment was rendered.</p> <p>Several exceptions were taken to the charge of the court, and the irregularity of the proceedings, but the principal error relied on, and the only one on which the court gave an opinion was, that the cause of action died with the defendant.</p>

IN ERROR. In the Court of Common Pleas of Westmoreland county, from which the judgment in this case was removed, by writ of error, Alexander Bruce, the defendant in error, and plaintiff below, declared against George Pumeroy, the plaintiff in error, and defendant below, in covenant.

<p>The bond to be given by the insolvent, under the 1st section of the act of the 28tfe, of March, 1820, is to be for the benefit only of the arresting creditor: if taken for the use of other creditors, it is void.</p>

IN ERROR. This was a writ of error to the Court of Common Pleas of Allegheny county. The plaintiff in error, Aquila M. Bolton, was plaintiff below. The plaintiff Aquila M. Bolton, had brought an action on the ease against Samuel Thompson, in the same court, which was referred to arbitrators, and a report was made in favour of the plaintiff for five hundred and six dollars and eighty-nine cents.

IN ERROR. A judgment was entered in the Court of Common Pleas of Venango county, at the suit of Richard Peters, jun., defendant in érror, against Thomas R. Peters, attorney at law, deceased, for the sum of ten thousand dollars, upon a writing transmitted by Thomas R. Peters, in his lifetime to the prothonotary of Venango county, by-letter from Chambersburg.

<p>On an appeal by the defendant from a justice of the peace, if the plaintiff recovers less on an award of arbitrators than he did before the justice, he is not entitled to costs nor can the arbitrators give them to him.</p>

<p>IN ERROR.</p> <p>Error to the Court of Common Pleas of Allegheny county; in an action of assumpsit for money had and received, &c. brought in that court by John C. Stocker, defendant in error, plaintiff below, against Lazarus Stewart, plaintiff in error. In the court below judgment was rendered in favour of the plaintiff, Stocker.</p> <p>Stewart was the late sheriff of that county, and the plaintiff Stocker having lately obtained a judgment against Anthony Bee~ len and Henry Bosler, joint merchants trading under the' firm of Beelen $? Co. for the sum of five hundred and sixty-five dollars and thirty-three cents, issued a fieri facias thereon and delivered the same to the defendant, then sheriff. Previous to this a fieri facias for the Bank of Pittsburg, against Beelen S' Co. had been put into the hands of the defendant with orders to levy on the personal property of Beelen S' Co. A levy was accordingly made on the personal property which was sold. The plaintiff afterwards applied to the Court of Common Pleas, from which both executions had issued, and obtained a rule on the Bank of Pittsburg to show cause why their execution should not be quashed. This rule appeared to be still depending or, at least, it did not appear that the court had either dismissed or made it absolute. The plaintiff supposing that the execution for the bank was illegally issued, and therefore that he had a right to the money raised by the sale of the goods of Beelen S? Co. which had never been paid over by the defendant, brought this action for the recovery of it.</p> <p>The authority under which the execution for the Bank of Pitts-burg was issued, was as follows: The defendant gave in evidence a bond from Beelen S' Co. to the Bank of Pittsburg in the penalty of ten thousand nine hundred and ten dollars, dated the 23d of Jlpril, 1823, with a warrant of attorney to confess judgment thereon, by virtue of which a judgment was entered, on which a fieri facias was issued on the 10th of June, 1823. The condition of the bond was “ that if Beelen S' Co. should pay to the Bank of Pittsburg the sum of five thousand four hundred and fifty-five dollars with interest from the date, being the amount of eight notes, the first seven being drawn by Beelen S' Co., and the last by Henry C. Bosler, discounted in the said bank, all payable at sixty days from their date, (the dates of each note with the endorsers were then specified,) and should pay all notes given to renew the said notes and each and every of them as required, and save harmless and indemnify the said bank in every respect with regard to the said notes, then the said obligation to be void, otherwise of force.” On the back of this bond there was a writing, signed by the endorsers of the notes, certifying that it was at their request and with their approbation that the bond was taken by the bank, and, that they held themselves responsible as endorsers, in the same manner as if the bond had not been taken.</p> <p>The following errors were now assigned upon exception taken to the charge of the court.</p> <p>1st. The court gave in charge to the jury that the defendant in error having no interest in the judgment or execution of the Bank of Pittsburg against Bosler S' Co., might be admitted to impugn and draw into question the judgment, execution and sale on said execution.</p> <p>2d. That the plaintiff might thus impugn those proceedings and draw their regularity into question, notwithstanding his agent, Mr. Poe, had solicited the entry of said judgment and issuing said execution, and prepared and posted up printed advertisements of said sale, and attended and purchased at said sale.</p> <p>3d. That although the plaintiff, by his attorney, applied to the court from whence the execution issued to set aside said execution, yet he might well impugn all the proceedings on the trial of this action, before any order or decision was made on the said application to the court, and his delay and neglect, in prosecuting this application, did not prejudice him in the present suit.</p> <p>4th. That the court, issuing said execution, had power to control and direct the plaintiff named therein, as to what property, real or personal, he should take to satisfy his execution.</p> <p>5th. That the assent of the defendants, Bosler <§■ Co., to the issuing execution made no difference, for that the creditor, Stocker, might still impeach and disaffirm this proceeding, and that said Stocker might thus impeach and bring into question the whole proceeding, even after his agent, Mr. Poe, had requested and urged the attorney of the Bank of Pittsburg that the said execution should be issued.</p> <p>6th. That although the sale made by the sheriff on said execution was good, and the purchaser might hold the property purchased on paying the purchase money to the sheriff; yet the defendant, Stocker, might recover the money from the sheriff in this action to his own use, to the exclusion of the execution of the Bank of Pittsburg.</p> <p>7th. The court charged the jury that the Bank of Pittsburg could not in law issue an execution and levy on personal property of Bosler <$’ Co., even with the assent of Bosler # Co., until after default had been made by Bosler <§’ Co. in paying off their notes j any injured creditor may draw this into question, although Bosler Co. do not resist it, and such injured and excluded creditor may recover from the sheriff the money made on the sales.</p> <p>8th. The court further charged that it is totally immaterial in law, whether one of the indorsers, with the assent of the bank, and with the agreement of Bosler fy Co. directed the contested execution to issue ; for at the time it issued it could not issue to the prejudice of other creditors, any more than to the prejudice of defendants (Bosler ¿¡r Co.) themselves.</p> <p>9th. The court charged, also, that the law watches with the narrowest scrutiny every endeavour by failing men to give preference among their creditors; all preferences are grounds of suspicion, parties benefftted by such preferences will be vigilantly controlled, and regarded with a jealous eye, and is liberal in favour of equalization in the distribution of the funds of insolvents j. strict proof is required of all who claim under preferences.</p> <p>10th. There is also error in the charge of the court, directing the jury to allow' in damages the whole of the original judgment of the plaintiff below, with interest upon it from the day of sale. There being in evidence before the court prior uncontested executions to be first satisfied, and also several' other executions delivered to the sheriff- on the same day, so as to surmount the sums made on tbe sales, and afford only a dividend among the last named class of executions.</p>

<p>Devise to 11. and his heirs, after the death of the testator's wife, “ and in case my son JR. depart this life before he is of age, or without lawful issue, I order and direct that my son W., and his heirs, may have the plantation that is by this will devised to his brother Robert, W. first paying, or otherwise satisfying, the legatees herein named, the sum of fifteen hundred pounds, Pennsylvania currency, viz. my sons, J., W., JI., and G, and also my daughters, M., Ml, P., J., and JB., or then- heirs, shares alike; and in' case my son W. will not accept the plantation aforesaid, under the condition above mentioned, in that case my son G. may have it, subject to the same terms as above mentioned, and on the refusal of G. to take the same, it shall be sold by my executors, for the best price that can be had, and the money arising from the same, divided, as before mentioned: it is also to be considered as my will, if any of my daughters, P., X., and 11-, or my son, JI., depart this life before they are of age, or without lawful issue, in that case, the share or shares of the.deceasedto.be equally divided between the survivors of my daughters, P., X., and B., also my sons, JI. and R., and their heirs.” Held, that R. having attained the age of twenty-one, the fee simple vested indefeasibly in him.</p>

IN error. The writ of error in this case was to the Court of Common Pleas of Allegheny county, and the plaintiff in error, T. B. Birch, was plaintiff below.

<p>IN ERROR.</p> <p>George Ammanl, the plaintiff in error, and plaintiff below, obtained judgment in the Court of Common Pleas of- county, against the defendants in error, for the sum of two hundred and fifty-four dollars and forty cents, and issued a fieri facias, to which the sheriff returned, that by virtue of that writ he had levied upon all the right, title, interest and claim of the within president, managers and company of the New Alexandria and Pitts-burg turnpike road, of, in andr to, ten miles of the New Alexandria and Pittsburg turnpike road, lying and being within his bailixviek,viz: five miles east, and five miles west of the gate erected on said road adjacent to New Salem, together with the said gate, and the toll-house erected contiguous thereto, and the lot of ground on which the said house is buili, together with the appurtenances. On this writ an inquisition was held, and the property condemned, and valued at sixty-five dollars. A rule was granted on the defendants’ motion to show cause, why the writ, the levy in virtue thereof, and the inquisition holden thereon, should not be set aside, and the court set aside the levy and the subsequent proceedings.</p> <p>It was now assigned for error, that the court erred in setting aside the levy and subsequent proceedings.</p>

IN ERROR. This was a writ of error to the Court of Common Pleas of Beaver county.

IN ERROR. This was a writ of error to the Court of Common Pleas of Indiana county, in an action brought by Hezehiah Reed, plaintiff in error, and plaintiff below, against Samuel Johnston, in which a verdict and jddgment were rendered for the defendant.

<p>E. and jV. were partners in the erection and business of a steam mill, on terms of dividing the profits and bearing equally the expense. Soon after the mill was in operation, they agreed by writing that JV. should take all the profits, pay the debts, (except a debt due by the firm to E.,) and pay E. eight thousand five hundred dollars for his interest in the property, when it should be convenient: and, in the meantime, pay him a yearly rent of six hundred and forty dollars, and 1hat any part of the purchase money which should be paid, should abate the rent pro tanto: JV. to release all demands against E., and E. to convey the steam mill immediately. Held, that the contract was usurious.</p> <p>In an action against the purchaser of a steam mill, by the vendor, who was his partner in the mill, to recover the purchase money, the defendant cannot, under the plea of covenants performed with leave, give evidence to show failure of consideration or nonperformance by the plaintiff of covenants contained in the articles of copartnership.</p> <p>Query, If he could on the plea of set off or notice of set oft' under the plea.</p>

<p>IN ERROR.</p> <p>Indebitatus assumpsit in the Court of Common Pleas of Allegheny county, brought by Samuel Lapsley, the plaintiff below, and defendant in error, against George Sichman, the plaintiff in error, and defendant below, in which a verdict and judgment passed in favour of the plaintiff below, and was now removed by writ of error.</p> <p>The plaintiff sought to recover the value of a leasehold property, consisting of a bark mill, sold to the defendant, and gave in evidence, by several witnesses, the defendant’s admissions, that he. Was to give the plaintiff nine hundred dollars for the lease. Something was said by the plaintiff’s witnesses about a.receipt for nine hundred dollars, and the defendant below gave evidence of the plaintiff’s acknowledgment, that there was only a balance of three hundred dollars due to him from the defendant, and that the dispute between them was concerning the interest on that sum. The defendant then gave in evidence the plaintiff’s receipt for nine hundred dollars, in full, for a saw-mill, stating, at the same time, that it was with a view to show the fraud of the plaintiff against his creditors, in giving a receipt in full, when in fact three hundred dollars were still due, and that the receipt was null and void, (the plaintiff having given no evidence of the value of the mill, the demised property,) and then, in further proof of the nullity of the receipt, offered J. Morrison, to prove the value of the mill. This evidence the plaintiff objected to, and the court rejected it, and sealed a bill of exceptions. '</p> <p>The defendant gave in evidence the service of an attachment on him, as garnishee, by a creditor of Lapsley; and contended, that he was excused from interest on the whole sum due by him to Lapsley, during its pendency. He, therefore, requested the court to charge as follows:</p> <p>1st. Does not the service of the attachment on the garnishee stay interest, during the pendency of the attachment?</p> <p>Jins. The general rule, upon this subject, is, that the garnishee, in a foreign attachment, is not answerable for interest, during the time the property of the defendant is locked up by process, in his hánds. Equity would, however, seem to require that this rule should not be extended farther than to the actual amount of the debt coming to the attaching creditor, together with a liberal allowance for costs, and individual expenses in the proceedings. The probability of such amount being ascertained by the garnishee, or the facilities offered for ascertaining it, .would be facts for the discretion,of a jury; such too I take to be the law.</p>

<p>1ST ERROR.</p> <p>This case was submitted to the court, and the opinion of the court was delivered by</p>

IN ERROR. Error to the Court of Common Pleas of Allegheny county. This was an action brought in the Court of Common Pleas by Francis Alexander, the defendant in error, against Henry Hold-ship. The cause was arbitrated under the compulsory act, and ant award returned for the plaintiff for one hundred and fifty dollars. The defendant appealed and paid the costs.

<p>IN ERROR.</p> <p>The' error assigned in this case by the plaintiffs in error, Henry C. Bosler, and Anthony Beelen, who were defendants below, was that George Poe, the plaintiff below, and defendant in error, had taken out a rule of arbitration on the return day of the writ, contrary to the provisions of the act of the 28th March, 1820, which' enacts that no rule of arbitration shall be entered by the plaintiff till after the first day of the term after suit brought.</p> <p>The facts of the case were, that a capias was issued in ease, marked no bail required, to April term 1823, in the Court of Common Pleas of Allegheny county, by Poe, against Bosler and Beelen. On the 21st of April, 1823, which was the first day of the term after suit commenced, the plaintiff filed a statement and entered a rule for the appointment of arbitrators, on the 6th of May. On that day the plaintiff appeared, but not the defendant, and arbitrators were chosen, to meet on the 27th, at which time they meet and reported, that “being duly sworn, and after hearing the proofs and allegations of the parties,” they found in favour of the plaintiff the sum of five hundred and forty-three dollars and sixty-one cents. Judgment was entered thereon.</p>

IN ERROR. By the writ of error returned in this ■ case from the Court of Common Pleas of Fayette county, it appeared that this action was… Held: she the said Mary Noble, did come and appear, and being asked how she would be acquitted, the said Mary did say and plead to the said indictment, that she was not thereof guilty, and thereof did put herself upon the country, and Thomas Elder, gentleman, who for the commonwealth in that, part followed, likewise, &c.” The declaration…

<p>IN ERROR.</p> <p>This was a-writ of errror to the Court of Common Pleas of Fayette county.</p> <p>The suit was in debt, in the name of the Commonwealth, for he use of Sarah Downard against Thomas Brownfield, one of the sureties of Daniel P. Lynch, late sheriff of Fayette county, upon the bond given by the sheriff, and his sureties, in the sum of ten thousand dollars for the performance of his official duties, agreeably to the act of assembly.</p> <p>The declaration, after reciting the bond and condition, stated that a bill of indictment was found at the March sessions, 1822, in the Court of Quarter Sessions of Fayette county, against John Allison, for fornication and bastardy, on the body of Sarah Downard, to which the defendant pleaded “ guilty.” Whereupon, it was considered by the court that the said John Allison pay a fine of ten pounds for the use of the county, five pounds lying-in expenses, (to the said Sarah,) thirteen dollars for expenses already incurred in maintaining the child, (to the said Sarah,) fifty cents a week for its further support, (meaning the child of the said Sarah, by the said John begotten,) until it arrives to the age of four years, if it lives so long; that he give security to indemnify the place where the child was born; and to perform such order for the maintenance of the child, as the Court may hereafter direct and appoint, to pay the costs of prosecution, and stand committed until the said sentence be complied with. By virtue of which, said sentence, judgment, and order of the same court, to wit, the 7th day of March, in the year, &c. &c., Daniel P. Lynch, aforesaid, then sheriff of the said county being, did take and arrest, and the same John Allison in his custody, then and there had and imprisoned, in execution of.the said sentence, for the fine, and allowances, and costs, aforesaid. And the said Commonwealth in fact saith that afterwards, to wit, on the said 7th day of March, in the year, &c., at &c., the aforesaid Daniel P. Lynch, (the same Daniel P. Lynch, then sheriff of the said county being, and the said John Allison, in his custody, for the cause aforesaid, being,) the same John Allison, at the county aforesaid, out of his custody, (the said Sarah of her lying-in expenses, and allowance of thirteen dollars for expences then incurred, not being satisfied, and the said John Allison not having given security for the maintenance of the said child, as the court might thereafter direct and appoint, and the said John not having paid to the said Sarah the sum of fifty cents per week, until the said child should arrive at the age of four years, amounting to a large sum, to wit, one hundred dollars ; and the said John not having paid the costs of prosecution, amounting to a large sum, to wit, ten dollars;) at large, whither he would, to go and escape, did permit.</p> <p>By which action hath accrued to the said Commonwealth, to have of the said Thomas the aforesaid sum of ten thousand dollars, nevertheless, &c.</p> <p>An award of arbitrators was made in favour of the plaintiff, for , the sum of eighty dollars and sixty-nine cents, on which judgment was rendered.</p> <p>The following errors were assigned by the plaintiff in error:</p> <p>1st. That the declaration ought to state that Daniel P. Lynch, after giving the bond, was duly commissioned, as the act of assembly declares that the bond shall be void, unless the person giving it be afterwards commissioned.</p> <p>2d. That the age of the child does not appear, nor consequently when the weekly allowance would cease.</p> <p>3d. That it does not appear, that the child was still living, and upon its life the weekly allowance depended.</p> <p>4th. That the cestui que use of the plaintiff below, claims damages for breaches in which she'has no concern, as the not giving of security, and the non-payment of costs of prosecution.</p> <p>5th. That she claims the weekly allowance for the whole period, when but a small part of the time had run at the commmencement of the suit; and the whole might never become due, as the child might die before the expiration of the period.</p> <p>6th. That it does not appear that she was entitled to the weekly allowance ; it being given, not for her use, but for the maintenance of the child. ■</p>

<p>IÍÍ ERROR.</p> <p>Scire facias in the Court of Common Pleas of Fayette county, from which the judgment was removed by a writ of error, upon a mortgage for five hundred dollars, given by Stephen Mackey, the plaintiff in error and defendant below, to Benjamin Brownfield, the plaintiff below. The defendant below pleaded payment, with leave &c. Replication, non solvit and issue.</p> <p>On the trial, the defendant below offered evidence of the admissions of the mortgagee, Brownfield, after the mortgage was given, that it was for more money than the mortgagor had received from him: that though the mortgage was taken for five hundred dollars, part only of that sum had been paid, it being understood that the mortgagor should receive the rest at some other time, but he never called for it. This evidence was objected to by the plaintiff, and the court overruled the evidence and sealed a bill of exceptions.</p>

<p>IN ERROR.</p> <p>The-only question in this case, which came before the court by by writ of error, to the Court of Common Pleas of Washington county,, was, whether the recognizance taken by the prothonotary, on an appeal by the plaintiff; from an award of arbitrators, was legal. The suit was brought by dignes Cunningham, the dedefendant in error, and plaintiff below, against John Donaldson, the plaintiff in error, and being arbitrated, an award was made in favour of the plaintiff, for twenty dollars. The plaintiff appealed, and the case being again tried, obtained a verdict and judgment for three hundred and fifty dollars.</p> <p>The recognizance of the plaintiff, on appealing from the award of the arbitrators, was entered on the record returned as follows: 46 The plaintiff appeals. John Cunningham, and Daniel Link tent in one hundred dollars, each, coram William Sample, prothonotary. June 29, 1824.”</p>

<p>IN ERROR.</p> <p>In the Court of Common Pleas of Fayette county, to which this writ of error issued, the plaintiff in error, Edward Garvin, who was plaintiff below, brought two suits against George Dawson, the defendant in error, and defendant below, one on the act of the 21st of March, 1772, sect. 3, to recover double the value of his goods, •wrongfully distrained by the defendant; and the other, an action on the case, at common law, for the same cause, and alleging his complaint in the same words. The first was commenced in January, and the second in February, 1822. Both were returnable to March term. There were declarations filed in both, so that it conclusively appeared, that both were for the same cause of action. The deféndant arbitrated both, 'and on the 23d of December, 1823, reports were made in both cases, that the plaintiff had no cause of action. On the 12th of January, 1S24, the plaintiff appealed from the decision in the first cause, but the decision in the second remained unappealed from, and was a judgment in full force.</p> <p>At June term, 1824, the present action was tried, on the plea •of not guilty, and there was a verdict for the plaintiff. On the 10th of January, 1S24, this verdict was set aside, and a new trial granted; and on the 16th of March, 1825, a jury was impannejled, and after the plaintiff’s testimony was closed, and the defendant bad examined his witnesses in part, the defendant offered a second plea, stating the, judgment in the second action as a plea in bar, and averring it to be for the same cause of action. The plaintiff objected to this plea, as coming too late, being a plea after the last continuance, but the court received it. ' He then prayed oyer of the record of the former judgment, and demurred, and the defendant joined in'demurrer. The jury was dismissed, and judgment given for the defendant on the demurrer.</p>

<p>The sureties to the Commonwealth, in a sherifif’s official bond, are liable to an action at the suit of the Commonwealth, seyerally as well as jointly.</p> <p>A declaration in a suit against the sureties in a sheriff'5» bond, may be amended, notwithstanding five years have elapsed from the date of the bond.</p>

IN ERROR. Error to the Court of Common Pleas of Somerset county. This was a scire facias on a recognizance entered into by John Patton, the defendant in error to Christian Miller. Miller had obtained a judgment before a justice of the peace, against John Tantlinger, who procured a writ of certiorari to remove the cause to the Court of Common Pleas, and upon that occasion Patton became bound in the recognizance on which this scire facias issued, as security for Tantlinger.

<p>• Where civil rights are affected, acts of assembly are to be so construed as not to have a retrospective operation; therefore where the defendant was sued by a turnpike company, and he was not liable because he had not paid five dollars a share at the time of subscribing, as required by a former act of assembly, and afterwards while this suit was pending, an act was passed by the legislature declaring that such companies should have the same remedies as if the former acts had contained no such provision, it was held that the act did not affect the case of the defendant.</p>

IN ERROR. On writ of error to the Court of Common Pleas of Mercer county in this suit, the case appeared to be as follows: The plaintiff below, and plaintiff in error, William Mathers, administrator of Thomas Mathers, deceased, brought this action of indebitatus assumpsit against Bevan Pearson, the defendant below, and defendant in error, to recover.back the sum of one hundred dollars, which Thomas Mathers, in his life time had paid to the defendant on the purchase from him…

<p>Testator authorized his executors to sell as much of his real estate as should be necessary to pay his debts, and educate his minor children; and further recited in his will, that his son had purchased an estate, on which the testator had advanced part of the purchase money, and the son had given his bond and mortgage for the residue, and declared the trust of the land to the testator; lie then ordered his executors to pay off the said bond and mortgage: held, that the executors had power to sell the real estate of the testator, free from the incumbrance of his debts, and the purchaser was not bound to see to the application of the purchase money.</p>

<p>The official recognizance entered into by a sheriff and his sureties, is not a record: and it seems the plea of mil tiel record is improper to a scire facias upon it.</p> <p>It seems such recognizance, as required by the act of assembly, is several as well well as joint.</p> <p>In a suit against the surety, on the official recognizance of a sheriff, such sheriff cannot be called by the defendant to contradict his official return to a writ.</p> <p>The suit on a sheriff’s recognizance must be in the name of the legal party who has the right: an equitable assignee may have his name marked and receive the proceeds of a recovery, but his claim cannot be the subject of litigation in the pleadings.</p>

<p>IN ERROR.</p> <p>This case depended on the act securing to mechanics and others, payment for their labour and materials, in erecting houses, &c., passed the 17th of March, 1806. Purd. Dig. 545. 4 Sm. Laws, 300. The plaintiffs claimed a lien, under this law, in preference to a judgment creditor. The following were the material facts of the case.</p> <p>William Robinson, jr. who was the original owner of the property on which the lien was claimed, commenced the building of a dwelling house, some time previous to the 5th of July, 1819; on which day he conveyed the premises, (the house being then finished, except the painting and glazing,) to A. Hopkins, who employed the plaintiffs to paint and glaze the house. The work of the plaintiffs was finished on the 4th of August, 1819. Hopkins paid no part of the purchase money; but, on the 14th of September, 1819, gave a judgment b.ond to Robinson, in the penalty of four thousand dollars, to secure the payment; on which bond, judgment was entered on the day of its date. The plaintiffs filed their account in the office of the prothonotary, on the 28th of February, 1820, and sued out a scire facias to the subsequent term, on which a judgment was confessed by Hopkins, on the 25th of March, 1820, which was less than two years from the commencement of the building. In the court below judgment was rendered for the defendant.</p>

<p>IN ERROR.</p> <p>Two actions of replevin for three hundred and five dozen sheaves of wheat and ninety dozen of rye, were brought in the Court of Common Pleas of Westmoreland county, for which this writ of error issued, by James Jack and Andrew Byers, plaintiffs below, and defendants in error, against Thomas R. Simpson and Michael Kimmell, which was consolidated and tried together, and a verdict and judgment rendered for the plaintiffs.</p> <p>John Turner and wife obtained a judgment against Johsua Simpson, at May term, ISIS, in the Court of Common Pleas of Westmoreland county. A fieri facias was issued to November term, 181S, and a levy was made on the right and interest of the defendants, in a tract of land, including the locus in quo, which was condemned, and pursuant to a writ of venditioni exponas, issued to August term, 1819, was sold to the plaintiffs. Afterwards, to wit, on the 27th of December, 1819, they instituted a proceeding before two justices, against Joshua Simpson, and on the same day the precept of the justices was issued to the plaintiffs reciting notice, &c., and requiring Joshua Simpson to appear before them the 30th day of the same month, at which time a decision of a jury and of the said justices was regularly obtained against the said Joshua Simpson, and a warrant issued to the sheriff to deliver possession of the land to the plaintiffs.</p> <p>The defendants then offered in evidence a location in favour of Thomas■ Simpson, dated 13th of June, 1769, No. 3399, and a receipt of William Thompson, deputy surveyor for the surveying fees, dated the 11th of May, 1771.</p> <p>The defendants offered to prove, that Thomas Simpson the locator, took possession of the land mentioned in the application, in the year 1772, and continued in possession by himself or tenants, until the 6th of April, 1819, at which time he executed a lease of the land, on which the grain, the subject of this action, had grown, to Thomas II. Simpson, which lease was offered in evidence. That in pursuance of the same lease Thomas R. Simpson, on the 6 th of April, 1819, was put in possession of the premises, and farmed the land and raised the grain mentioned in the writ of replevin. That he continued in possession of the premises as the tenant of Thomas Simpson, until the 2d of January, 1820, when he was forcibly dispossessed by the sheriff of Westmoreland county, by virtue of the warrant issued by the justices aforesaid; and that Joshua Simpson at the time Thomas Simpson was turned out of possession lived on the premises, under and by permission of the said Thomas R. Simpson. That Joshua Simpson whose interest the plaintiffs purchased as aforesaid had no interest in the land nor any right whatever to the crops raised by the said Thomas R. Simpson, nor to the grain which is the subject of this action. Which evidence was objected to by the plaintiffs’ counsel and overruled by the court and exception taken.</p> <p>The rejection of the evidence was now assigned for error.</p>

<p>In a suit for the subscription to the Meadville seminary, under the 4th section of the act of the 12th of March, 1800, the subscription book, signed by the defendant, is evidence, .without showing that security was given for the amount subscribed.</p> <p>It seems, it is not necessary to a recovery of such amount, to show that such secucurity was given.</p> <p>By the act of the 4th of April, 1805, certain trustees of the Meadville seminary thereby appointed, were authorized to sue, and an action was brought accordingly. By subsequent acts, their right of action was abolished, but no applies, tion was made to abate the suit. • In January, 1812, another act was passed, under which it was held, the right of suing was revived, and the former action was maintainable.</p> <p>Evidence is not admissible of declarations made at the time of subscribing to a seminaryi by one not a trustee or party to the suit, especially, if on the faith of the defendant’s subscription, others afterwards subscribed.</p>

IN ERROR. This writ of error was taken out by the defendants below, John Stewart and Samuel Redett, against the administrators of Jlndrew Mitchell, the plantiffs below, with a view to the judgment of the Court of Common Pleas, awarding costs to the plaintiffs below.

<p>m ERROR.</p> <p>This writ of error was to the Court of Common Pleas, of Franklin county, and the plaintiff in error was defendant below.</p> <p>It was an action on a single bill, by which William Downey, the defendant below, and a certain George Hartman, bound themselves jointly and severally, to pay the plaintiffs the sum of one hundred and sixteen dollars and eighty cents, sixty days after date. Before the bringing of this suit, the plaintiffs brought a suit on the same bill, against Hartman and Downey, jointly. The writ was served on Hartman, but non est inventus was returned, as to Downey. Hartman entered special bail, and judgment was obtained against him, but no further proceedings were^ad, in that suit, against Downey. The question was, whether the present action, against Downey alone, can be supported.</p>

<p>A judgment by default against a defendant, who has been arrested and given bail to the sheriff, but not entered special bail, is irregular.</p> <p>Under the statement act of the 21st of March, 1805, if the plaintiff does not file his statement bill after the third day of the term to which the writ is returnable, he cannot sign judgment by default without calling for a plea or defence.</p> <p>If the plaintiff omits to file his statement till after the time prescribed by the act, it seems he may still proceed as if he had declared at common law.</p>

<p>Assumpsit does not lie to recover money ordered to be restored on reversal of the judgment of an inferior court; though it seems it would if there were a reversal without order of restitution.</p> <p>An express promise to pay by a stranger, would maintain assumpsit.</p>

IN ERROR. In the Court of Common Pleas of Cumberland county, to which this writ of error issued, a judgment was entered by the plaintiff below, and plaintiff in error, Andrew Mitchell, against John Stewart and Samuel lleditt, the defendants below, and defendants in error, at January term, 1820, on a bond and warrant of attorney, bearing date the 27th of May, 1819, in the sum of five hundred dollars.

IN ERROR. Writ of error to the Court of Common Pleas of Cumberland county, in an action in nature of a feigned issue, brought by the Pennsylvania Agricultural and Manufacturing Bank, against the ■ administrators of Daniel Stambaugh, deceased, late sheriff of Perry county, to decide, whether a certain Abraham Landis was entitled to the payment of a debt due to him on bond from George Stroop, deceased, out of the money in the hands of the sheriff, proceeding from the sale of…

<p>IN ERROR.</p> <p>This writ of error was to the Court of Quarter Sessions of Cumberland county, in which an indictment for forgery was found by the grand jury, against the plaintiff in error, Alexander Searight, and Thomas G. Evans, on which, issues being joined on the "pleas of not guilty, and both defendants tried by the same jury, they acquitted Searight, and convicted Evans, and ordered the defendants (naming them,) to pay the costs of prosecution. A motion being made for a new trial, the court afterwards ordered that a new tidal should be granted as to Evans, on condition that he pay the costs of prosecution, and refused the motion for a new trial as to Searight, and sentenced him to pay the costs of prosecution, according to the finding of the jury, immediately, or give security to the sheriff for the payment of the same within ten days, and in default thereof, to be committed till the costs were paid.</p>

1ST ERROR. Error to the Court of Common Pleas of Cumberland county, where a verdict was rendered in favour of the defendant in error, the plaintiff below. The action was ejectment by the defendant in error and plaintiff below, John Moore, against Buchanan and Strong, to recover a tract of land in Newton township, Cumberland county, which the plaintiff claimed under a sheriff’s deed to him in 1806, made in pursuance of a sale under a venditioni exponas.

<p>If two tenants in common of land agree in writing that the land shall be sold, and the proceeds equally divided, and if either die before the sale, the survivor should sell: on a side by the suryivor, the proceeds are to be considered as real estate.</p> <p>The unpaid purchase money, due the the commonwealth, on lands taken out by location, warrant, &c. is a charge on the land only, and not a personal charge.</p>

<p>Sales by trustees to near relations are suspicious.</p> <p>Under what circumstances trustees are charged with the principal or interest of property sold by them.</p>

<p>An indorsement in blank by the payee of a sealed bill does not make him_liable to the holder.</p> <p>Nor is such indorser liable on the ground of an express promise to pay by his offer of a compromise, or silence when demand is made, or any thing short of a clear and unequivocal promise.</p>

IN ERROR. The case in the Court of Common Pleas of Huntingdon county, to which this writ of error issued, was indebitatus assumpsit, by Charles Raymond, the plaintiff below, and plaintiff in error, against John Baar, for goods sold and delivered, and on the common money counts, to which court the defendant appealed, from the decision of a justice of the peace.

<p>Construction of awards.</p> <p>Prosecutions for assaults and batteries may be the subject of reference by the parties.</p>

<p>ÍC is a sufficient execution of a commission to take depositions, if the oommissiouers annex their names to the depositions, and the envelop is sealed.</p> <p>It is sufficient if the name of the county appear in the margin of the deposition, to be one of those to which the commission was directed, if it be an ex parte commission.</p> <p>"Where a commission is directed to several commissioners residing in different counties, or either of them, one may take depositions in one of the counties named, though he do not reside there.</p> <p>it is not an objection to the reading a deposition in evidence, that when the party objecting inquired for it before the trial of the prothonotary, he answered it was not returned, though it appears it was then in the possession of the opposite counsel, who had taken it out of the office; but it seems it would be a good ground for a continuance of the cause.</p> <p>Trothonotaries are responsible for papers allowed by them to be taken out of the office.- ,</p> <p>On the trial of an issue of (levisavit vel non, the defendants’ witnesses proved that certain women had combined to impose on the testator after he had lost the use of his rational faculties; that they had kept him in a state of intoxication, and had represented each other as persons of virtue and good character, and urged him to make a will in their favoui', to the exclusion of his own blood relations 5 and the subscribing witnesses to the will made the same declarations. Held that the defendant a may give evidence that those persons were women of bad character.</p> <p>The declarations of a principal devisee in a will thht the testator was incapable of making a will, the will bequeathing to her the whole estate (a few legacies excepted) for life, and afterwards one half to her relations, and the other half to the relations of the testator, though the plaintiff on record was her agent, are not evidence for the defendant.</p> <p>But if the whole estate had been devised to her they would be evidence.</p>

<p>IN ERROR.</p> <p>This was an amicable suit, brought in the Court of Common Pleas of Huntingdon county, to try the right to money paid into court, in the name of Robert Wilson's executors, defendants in error and plaintiffs below, against Robert Jlllison, executor of John Jl. Jlnderson deceased, the defendant below and plaintiff in error, who was a stakeholder, the administrator de bonis non of Ludwig Lowman deceased, being the real defendant. The plaintiffs below claimed the money on the one hand, and the administrator de bonis non of Ludwig Lowman, on the other.</p> <p>Ludwig Lowman died in 1797, leaving a widow and four children, after making his last will, by which he made the following disposition of his real estate, having first giving some pecuniary legacies, and ordered the payment of his debts.</p> <p>“ It is my will that my beloved wife Elizabeth, shall have, hold, and enjoy, all my real and personal estate whatsoever and wheresoever the same may be, and have the use thereof during her widowhood. Item, it is my will and I do order and direct that my hereafter named executors, or the survivor of them, shall and do after the decease of my said wife Elizabeth, sell and dispose of all my estate real and personal, either by public or private sale, as my said executors or the survivors of them shall deem most beneficial. And it is further my will, and I do order and direct that the monies arising by or out of such sales, shall he divided into four equal parts or shares. And I do give and bequeath one equal fourth part or share thereof unto my son Lewis Lowman, and one other equal fourth part or share thereof I do give and bequeath unto my son George Lowman. And one other equal fourth part or share thereof I do give and bequeath unto my son Frederick Lowman. And the remaining equal fourth part or share thereof I do give and bequeath unto my daughter Mary, wife of John Hubley. And I do hereby nominate, constitute, and appoint my said wife Elizabeth, my son Lewis Lowman, my son George Lowman, and my son-in-law John Hubley, and the survivors or survivor of them to be the executors of this my last will and testament. And I do hereby give full power and authority unto my said sons Lewis Lowman and George Lowman, and my son-in-law John Hubley, and the survivors or survivor of them, as executors of this my last will and testament, to make, execute, seal, and deliver such deeds or conveyances unto the purchaser or purchasers of my said real estate, as will vest such estate unto the purchaser or purchasers thereof as fully and freely as I now have, and hold the same.”</p> <p>George Lowman died in the year 1800, having devised all his real and personal estate to Lewis Lowman. Judgment was obtained by Robert Wilson against Lewis Lowman, in February, 1803, which was revived by scire facias in January, 180S, and a fieri facias was issued and returned nulla bona. In August, 1821, there was another revival by scire facias, and a fieri facias issued on which Lewis’s interest in the land conveyed by the will was levied on, and the debt, interest and costs, paid into court by Clapper, the terre-tenant.</p> <p>After the death of the widow, and of all the executors named in the will, administration de bonis non, cum testamento annexo, to the estate of Ludwig Lowman, had been granted to Joseph Hubley, who, prior to the levy by Wilson, had under the authority in the will, sold the land to Clapper, by whom as much of the purchase money was due as was now paid into court: and now Hubley, as such administrator, claimed the money in court.</p> <p>The court below charged the jury that the plaintiffs below had a lien by virtue of their judgment, and that they were entitled to the money, and not the administrator de bonis non, and the jury found accordingly.</p> <p>Exception was taken to the court’s opinion.</p>

IN ERROR. Error to the Court of Common Pleas of Bedford county, in which a verdict and judgment were rendered in favour of the plaintiffs below, the defendants in error, William Smith, and dignes, his wife, in an ejectment against the plaintiffs in error, and the defendants below, Peter Voris, and the heirs of William Crabb, deceased.

IN ERROR. In the Court of Common Pleas of Bedford county, to which the writ of error in this case issued, this was an action of trespass, vi et armis, &c. brought by Jacob Schell, against Matthias Smith, and William Gibson, for taking and carrying away eleven barrels of flour, the property of the plaiutiff. On the trial in the court below, the plaintiff gave evidence that he had purchased the flour of a certain Henry Frazer.

<p>The lien of a recognizance entered into by the sheriff and his sureties, is gone after the lapse o£ five years without suit on the recognizance, notwithstanding there has been a suit on the bond given at the same time.</p>

<p>IN ERROR.</p> <p>In the Court of Common Pleas of Huntingdon county, to which this writ of error issued, the plaintiffs in error, Dean, Marshall, and Hunter, who were also the plaintiffs below, brought this action of assumpsit as assignees of Benjamin Davidson, an insolvent debtor, against John Patton, who had been sheriff of Huntingdon county, to recover a sum of money, part of the proceeds of the sale of mortgaged premises, which he had applied to satisfy a judgment. The mortgage was not recorded for more than a year after its date, and in the mean time judgment was obtained against the mortgagor. The moi’tgage was then recorded, and another judgment was obtained against the mortgagor, at the suit of the same plaintiff. Executions were issued upon both judgments, and personal property which had levied upon on the first judgment, was applied by the consent of the plaintiff and defendant in those two judgments to satisfy the last judgment, leaving the first to operate on the mortgaged premises.</p> <p>The details of the proceedings were as follows: On the 31st of July, 179S, a mortgage was given by James Clarke to Benjamin Davidson. On the 10th of August, 1798, John Canan obtained a judgment against Clarke, for one hundred and fifty-three pounds, and the mortgage was afterwards recorded, namely, on the 20th of August, 1799, To April term, 1803, a. fieri facias was issued by Cañan against Clarke on his judgment, which was returned by the sheriff, goods levied, viz. four horses, ten cows, twenty sheep, twenty hogs, grain in the ground, wagon, and all the defendant’s household furniture and farming utensils. To November term, 1805, a scire facias issued on Davidson’s mortgage, on which judgment was entered the 30th of April, 1807. On the 21st of May, 1S07, Canan obtained a second judgment against Clarke for forty-six pounds, thirteen shillings, and five pence, and issued a fieri fardas thereon to November term, 1807, to which the sheriff returned, goods levied, viz. five horses, ten cows, twenty sheep, grain in the barn, and stock and granary household furniture, and farming utensils. To August term, 1808, a venditioni exponas, No. 1, was issued by Canan on his second judgment, and a venditioni exponas, No. 2, on his first judgment. No. 1 was returned, goods all sold: amount of sale four hundred and thirty dollars and eighty cents, debt, interest, and costs to be credited in full on this suit, remainder to be credited on venditioni, No. 2, to August, 180S. This, it appeared in evidence, was done by the agreement of Canan and Clarke. The plaintiffs in this suit had the mortgaged premises sold by the sheriff in 1809, and they brought less than the sum due to the plaintiffs on their mortgage. The balance due to Canan upon his first judgment, after the arrangement between him and Clarke, as above stated, was deducted from the proceeds of sale of the mortgaged premises, and paid over by the defendant to Canan: and for the loss thus sustained by the assignees, the present suit was brought.</p> <p>The plaintiffs requested the court to instruct the jury, in matter of law, as follows, and to reduce the opinion of the court to writing, and file the same on record.</p> <p>1. The levy on the fieri facias to April term, 1803, Canan against Clarke, is prima facie evidence of a levy to the amount of the debt, interest, and costs, and it lies upon the defendant to show that the levy was not sufficient to pay the same, and, not having done so, the prima facie evidence is conclusive, that the same levy was sufficient to pay the debt, interest, and costs of that fieri facias.</p> <p>2. The property levied upon by the execution to April, 1803, must be first appropriated to the payment of the debt in that execution, and cannot be applied to the execution to November, 1807.</p> <p>3. The judgment of Canan against Clarke, entered the 21st of May, 1807, is subsequent to the judgment of the assignees of Davidson against Clarke, entered on the 30th of April, 1807, and is not entitled to any part of the money arising from the sale of Clarke’s land, until the judgment of the assignees of Davidson against Clarke is fully paid and satisfied.</p> <p>4. As soon as the sheriff levied on the goods of the defendant in the execution to April, 1803, the property in the goods became altered and vested in the sheriff, and he became debtor to Canan, the plaintiff, for the amount of the property thus levied.</p> <p>5. When two writs of fieri facias are levied upon the same property, as in this case, the first fieri facias must be fully paid by the sheriff before any part of the proceeds of the property levied upon can be appropriated to the payment of the debt, interest, and costs of the second execution, and the whole amount of the fieri facias to April, 1803, should be satisfied before any part of the proceeds of the levy in that case could be legally applied to the fieri facias to November, 1807.</p> <p>6. Whenever a fieri facias is directed and delivered to a sheriff, he is bound to execute the same on the defendant’s property, and is liable for all mistakes and for the value of all the property levied upon, even, though the same should be rescued from the sheriff, or destroyed by the original defendant; and if Clarke sold, eat up, or destroyed the articles, or any of them, levied upon by virtue of the fieri facias to April, 1803, the sheriff, (the present defendant,) is liable for all articles so sold, eaten, or destroyed.</p> <p>Charge of the court.</p> <p>“It seems that two writs of execution wore in the hands of Sheriff Patton, in favour of Canan against Clarke, and that a levy was made on the fieri facias in each case. A writ of venditioni ex-ponas was issued subsequently in each case, upon which sale was made, and, as the witness stated, by the consent and direction of Canan and the defendant. The sheriff was directed by them to appropriate the money raised by the sale of the personal pi’operty to the execution of the younger judgment, and to pay over a balance that remained to the elder judgment. We cannot see any impropriety in this. In law the parties had a right to make this appropriation, if the facts stated are true.</p> <p>“If Canan had no notice of Davidson’s mortgage until it was put upon the record, then he had the first lien upon Davidson’s land, and the land stood bound for the payment of that lien, and Canan could not be required by the mortgagee to proceed against the personal property; he was at liberty to proceed or not to proceed, at his pleasure. If he did proceed, so far as to issue a fieri facias and make a levy, he might give indulgence from time to time to the defendant, or he might enforce a sale at his option: he was to be the judge in his own case how and when he was to proceed. There existed no privity between Davidson, or his assignees, and John Canan, by which they could control him in the management either of his judgment or execution. I cannot discover any principle that would, under the circumstances of the case, prevent Canan and Clark from appropriating the px’oceeds of the personal estate to which of the two executions in the hands of the sheriff they pleased. Such appropriation is consistent both with law and equity.”</p> <p>Answers of the court to the plaintiff’s points.</p> <p>“ 1. If the facts were as supposed in this point, the legal inference is well enough; but you will decide whether it has not been shown by the defendant that the levy did not satisfy the judgment. But the proceeds were appropriated aceoi’ding to the principle which we have before stated.</p> <p>“2. We have given our opinion on this point befox-e.</p> <p>“ 3. Atyyvered in the affirmative, as requested. The defendant does not cMm under this judgment any part of the money arising from the sale of Clarke’s land. He elaims to have it satisfied out of the personal estate. '</p> <p>« 4. We see no objection to this point, and answer it accordingly.</p> <p>.«5. This is the law between different parties, but when both executions are in favour of one plaintiff, that plaintiff and defendant may direct otherwise, when third persons are not in a condition to be affected by such management.</p> <p>« 6. This point is correct, as a general principle. How far it is applied to this case, appears from what we have already said.”</p> <p>The plaintiffs excepted to this charge, and the answers of the court.</p>

<p>Testator, after specific bequests of personal property to his widow, devised cer, tain portions of his real estate to his six sons, and gave money legacies to his two daughters, charging his real and personal estate blended with the payment of debts and legacies. One of the sons died in the lifetime of the father, who died intestate, as to the portion devised to that son; and also as to a tract of land purchased after the execution of the will, a large balance of the purchase money for winch tract, remained unpaid at the time of his death. Held, that the assets were to be administered in the following manner, viz i</p> <p>1. The specific bequest to the widow to remain untouched.</p> <p>2. The personal estate to be applied to the payment of legacies, and all the debts of the testator.</p> <p>3. To the balance remaining, after exhausting the personal estate, the descended lands are to be applied. If these funds should not be sufficient, then</p> <p>4. The lands devised are to be applied.</p>

<p>If one tenant in common sells the whole tract, and possession be held adversely, for twenty-one years, the sale and possession amount to an ouster of the co-tenant, who is barred by the act of limitations.</p> <p>"Where husband conveys, without the wife joining in the conveyance, the statute of limitations does not begin to run against her right until the death of the husband.</p>

<p>IN ERROR.</p> <p>On the return of a writ of error from the Court of Common Pleas of Huntingdon county, it appeared that this ejectment was brought by John Shoenfelt, the defendant in error, against Thomas H. Stewart, the plaintiff in error, to recover four hundred acres of land in Hopewell and Woodbury townships.</p> <p>On the trial, the plaintiff below, after having proved the appointment of Samnul Steel, as treasurer of Huntingdon county, for one year from the 29th of May, 1820, offered in evidence a deed bearing date the 18th July, 1S20, from the said Steel, to William Wilson, for the consideration of three dollars and forty-three cents for four hundred and twenty-five acres and sixty-nine perches of land in Porter township, faxed in the name of George Sevitz. The defendant objected to the admission of this deed, at the time at which it was offered, upon which the plaintiff gave in evidence the assessment lists of Porter township, for the years 1815 and 1816, wherein it appeared that four hundred and twenty-five acres were taxed in the name of George Sevitzj after which he again offered in evidence the deed from Steel to Wilson. The defendant’s counsel objected to its being read, but the court admitted it, and an exception was taken to their opinion. The title of Wilson having been regularly deduced to the plaintiff, he proved by William Peed,, the deputy surveyor, that the tract in question was situated in HopewellWoodberry townships, one or two miles above the line of Porter township, and that when he surveyed it in 1813, it was unseated and had no improvement whatever upon it.</p> <p>On the part of the defendant it was proved that in the year 1815, Jacob Grove purchased of Thomas II. Stewart, all that part of the tract in controversy which lay south of the mountain, and in the same year a division line was run between him and Stewart, the part purchased by Grove being situated in Hopewell, and the residue óf the tract in Woodberry township. In the spring of 1816, Grove built a cabin-house and afterwards a stable, and paid taxes for the land. A woman named Fry resided on the land one or two years, and was followed, after the lapse of two years, by Hiram Cozens, who remained about two years, and was in the year 1822, assessed for one cow, and paid the tax. In 1S20, four hunhred and twenty-five acres sixty-nine perches in the name of George Sevitz, were advertised for sale at the treasurer’s sale of unseated lands for taxes from 1814 to 1816, in Porter township, and six hundred and nine acres in the name of Thomas H. Stewart, were advertised, for taxes of 1817 and 1818, in Woodberry township. Stewart's sale was stopped by some arrangement with the commissioners. The land taxed in the name of George Sevitz, was the same as that taxed in the name of Thomas H. Stewart. The credit was entered to Stewart, because the tract in the name of Sevitz had been sold. In July, August, and September, Thomas H. Stewart, tendered to Isaac Borland, the taxes and costs due upon the tract.</p> <p>The plaintiff disclaimed title to that part of the tract purchased by Grove.</p> <p>After the evidence was closed the court, delivered to the jury the following</p> <p>Charge — This is a singular case. Our acts of assembly are made to collect a share of the burden of supporting the government from those who own property. The first acts guarded this property from sale for taxes by so many pre-requisites that it amounted to an exemption. Repeated laws on this subject have been passed, and to say the least of it, they have not been construed favourably to protect those who purchased as they supposed under the laws of the land. At length it seems to have come to a contest between the government and landholders, whether they can be compelled to pay taxes. On the one side there is an appearance of hardship in selling a tract of land for a few dollars. On the other, it is absolutely necessary that every government should collect its taxes, and collect from all who own property, and the hardship is on a purchaser who has bought on the faith of laws and government, and who should find his labour lost and his title good for nothing. It is idle, when a poor man has laboured day and night two or three years on an uncultivated tract, to tell him that twenty-five per cent, or eight or nine dollars is a compensation. It is an insult to him. Whatever it may be to him who has bought on speculation, to a purchaser and settler it is injury and insult — nay, more, the pay for improvement when made is illusory. Those who never entered into the woods and cleared, built, and improved a tract, have no conjecture of what the settler does or suffers. One thing proves it. A tract is sold unimproved at four dollars per acre; when only a cabin house and barn and thirty or forty acres are cleared, it will sell readily and commonly for eight or ten dollars per acre.</p> <p>This is not the case however of a contest between a purchaser at treasurer’s sale and owner — the defendant has shown no title, he appears as a naked trespasser. The commissioners’ books produced by himself show he bought this land, at commissioners’ sale in 1812 — but he has produced no deed, has paid no taxes since that time, — he has sold part of the tract, — but neither paid the taxes nor settled on the residue. The tax has not been regularly assessed — at least it has not been shown to have been so. But it would seem that Grove has paid taxes for part of the tract in question, and yet the whole was taxed in 1816, in which year Grove paid for a part, but in 1812, 1813,1814, and 1815, none of it was seated. The assessment of those years is not shown, except for 1815. Thomas H. Stewart after his purchase at commissioners’ sale, in 1812, did not file his list of lands at all until 1817, and then filed, for six hundred acres in Woodherry, not specifying under what warrants or parts of warrants it was held. It was advertised as his six hundred acres, in 1820, but not sold — and no reason is given. The taxes however were not paid. Afterwards Mr. Reed, becomes commissioner and in 1821 or 1822, his knowledge of the country enabled him to inform his fellow commissioners that Sevitz’s was part of Thomas II. Stewart’s six hundred aeres; and as Sevitz’s had been sold in the name of the warrantee the amount of its sale is credited to Stewart — although he was not present. After-wards he pays on the llth of June, 1822, the amount due on another tract of his of one hundred and eighty-seven acres. The plaintiff purchased the tract in question in 1820, and paid his money™ has his deed duly acknowledged and recorded — and brings this suit not against the warrantee who purchased the warrant, and paid the state for it, but against a mere trespasser. For the commissioners’ books, showing that Thomas H. Stewart purchased this tract in 1812, without the production of a deed or payment of money by him, or the payment of taxes since, is of no avail to him. The objections to the plaintiff’s recovery are that all the assessments have not been shown; that in 1816, the whole tract was assessed as unseated land in the name of George Sevitz, when Grove paid for part of the tract as his own, and that the assessment is in Porter township, when in fact the land is in the adjoining township of Woodberry — and the deed conveys land in Porter township.</p> <p>The act of 1815, is an attempt to enact that a purchaser at commissionei'’s sale of a tract shall have a good title in two years from the sale. It is true it must be unseated land, and must be assessed, and taxes must be due and unpaid. If the legislature can make a sale valid after two years, this act has done it, and to me it appears vain to dispute, that such is the effect of the words, and equally clear that such was the intention. I think this court possesses no repealing power, and if we had such power I would not exercise it. My situation, living in the country brings me equally acqainted in my profession with those claiming on both sides, and the hardships on both sides. I have also considered of the power and the duty of the government to assess and to enforce the collection of taxes. The law it is true appears to contemplate a contest with the real owner, and not with a third person, a mere trespasser. If the act validates the title against the real former owner, it must give a right of entry against a wrong-doer. The township being mistaken has been the most difficult question with me. A warrant or deed mistaking the township does not invalidate, nor a mistake of the county, — nay, the certificate to obtain the warrant being by mistake taken before the justice of another county, does not invalidate the warrant as against a third person, (Grant v. Eddy.)</p> <p>It is not necessary to decide how it would be against the owner. A younger warrant taken for, and surveyed on land before patented, is not as against such patent of more validity than the voidest deed ever given by a treasurer. Yet it will support an ejeetment against a mere trespasser; so an improvement on surveyed land, invalid against him who has title, is yet sufficient to support trespass or ejectment against a mere wrong-doer.</p> <p>The law throws the possession on the owner of the survey. The -treasurers’ sale transfers that possession to the purchaser firmly, and with title if the sale is regular, defeasibly as to the owner for two years if irregular, but effectually after two years against the owner. I repeat I do not say how this would be as against the warrantee, I incline to believe it not an objection lying in the mouth of a third person. In many of our counties the linesof townships extend many miles by a certain point of compass through woods and over mountains, and these lines have not been run even in case of town ships laid out ten or even twenty years ago, This may, though I doubt it, affect the title against the owner, but I do not see how it lies in the mouth of a trespasser.</p> <p>The counsel for the defendant then requested the court to instrust the jury on the points which follow:</p> <p>1. That the plaintiff having declared for land in Hopewell and Woodberry townships, and having exhibited a deed from the county treasurer founded on an assessment and sale of land in Porter township and the proof being made that the lands in question never were in Porter township, the plaintiff can derive no title under his deed to lands in Hopewell and Woodberry.</p> <p>2. That the tract of land in the name of George Sevitz having been divided among.sundry purchasers, and having been taxed on the commissioners’ books to such persons, according to their several interests therein, as situated in Hopewell and Woodberry, and also taxed in the name of George Sevitz, as unseated land in Porter township, there is no notice to the defendant that his land was the land advertised in the name of George Sevitz.</p> <p>3. That a division of a tract of land having been made by the owner, and part of the same being seated, there being no division in the return of the assessment, but the whole being assessed as an unseated tract, the sale of the same as an unseated tract is illegal, and will confer no title on the purchaser, if property was to be found on the tract, or any part thereof, to pay the taxes, at the time of sale.</p> <p>4. That the tract in the name of George Sevitz, being partly owned by Jacob Grove, and part by Thomas H. Stewart, and taxed to each of them, according to his interest therein, a sale made of the same as unseated land in the name of the warrantee is illegal.</p> <p>5. That the act of 1815, directing the mode of selling unseated lands for taxes, requires that all taxes shall be calculated up to the time the land is sold, and that an advertisement of a particular tract in the name of one person in one township, for arrearages of taxes for particular years, and an advertisement of the name of another person in another township, for arrearages of taxes for other years, and a sale made under such advertisement is illegal and will not confer title.</p> <p>6. That the acceptance of taxes from Jacob Grove for part of the land and settling with Thomas H. Stewart for taxes for the other part, by the treasurer, or commissioners, or either of them, was sufficient to lead them to believe that the land would not be sold for taxes, when such land was advertised in their names, and a subsequent sale'of the same tract for arrearages of taxes, in the name of the warrantee is illegal.</p> <p>7. That the plaintiff not having shown title out of the commonwealth cannot recover.</p> <p>8. That the act of 1799, respecting county rates and levies requires an assessment to be made in a particular manner and directs the mode of selling unseated land for taxes, and that the act of 1815, alters the mode of selling but does not dispense with the provisions of the act of 1799 respecting the assessment, and if no asaessment has been made according to law on the tract in the name of George Sevitz in the present case, the plaintiff cannot recover.</p> <p>9. That the fourth section of the act of 1815, applies to cases wherein a possession has been taken by a purchaser under a sale for taxes, and an ejectment brought against him by the owner of the' land, but does not apply to a case where the owner of the land so sold is made the defendant in ejectment by the purchaser as plaintiff, but in the latter case, the purchaser must make out the validity of the sale in all its parts, in order to enable him to recover.</p> <p>10. That under the provision of the act of 1815, a treasurer must sell every two years, and that such sale shall be made for all taxes which are then due and unpaid, and that a sale of an unseated tract for taxes due more than one year prior to the last treasurer’s sale, is illegal.</p> <p>11. That any assessment made by an assessor of land notoriously out of his township is illegal and void.</p> <p>12. That if land situated in Hopewell and Woodberry, be advertised as being in Porter, such advertisement can give no notice to a person holding lands in Hopewell and Woodberry.</p> <p>13. A treasurer’s deed, without other description of the land conveyed than <e Porter township,” cannot vest any title to land more than two miles out of the known bounds of Porter township.</p> <p>14. That any assessment made by the assessor of Porter township out of the known boundaries of Porter township is illegal and void.</p> <p>15. That a treasurer’s deed describing land in Porter township without other description, cannot vest any title in the grantee to lands notoriously known to be in Woodberry and Hopewell townships. *</p> <p>16. That if the jury believe the lands in dispute to be in Hopewell and Woodberry townships, the treasurer’s deed given in evidence vests no title in John Shoenfelt the plaintiff.</p> <p>17. The land having been all advertised in the name of George Sevitz, if the jury believe at the time of sale, there was sufficient personal property on the tract of land to pay the taxes then due, the sale vas void, and vested no title in the purchaser.</p> <p>To these propositions, the court answered,</p> <p>1. This is a question of some importance, and perhaps of some difficulty. In this case, as the defendant has shown no title, nor offered to show any, except that, in exhibiting the commissioners’ books, by the defendant’s counsel, we saw an entry, that the tract in the name of George Sevitz was sold to the defendant, in 1812, it is not necessary to sfate what the law would be, in a case betwen the warrant owner, and the purchaser. We think the purchaser may, under this deed, &c. sustain a suit against a trespasser, coming in after his purchase. And, as proof has been given of entry and possession of Grove’s half of the tract, before or about the time of the sale, but no proof of when the defendant entered, and he has neither alleged nor proved a possession before the sale, we have only the case of a defendant in possession in 1823, and of a tract sold, as vacant, in 1820.</p> <p>2. Before I proceed to say any thing on this, I enter my protest against proceedings such as have been adopted by the defendant’s counsel, in this case. In this, and more than half of the succeeding points, they have put questions, founded in whole or in part on a state of facts totally different from the evidence given in the cause. In some of the points, however, blending something which, properly stated, occurs in this cause: for instance, the conclusion of this point assumes that the defendant was the owner of the warrantee’s title; of which, not only there was no evidence, but no offer to prove it. It assumes, that this land was taxed in some person’s name, in Hopewell and Woodberry. There has been not only no proof of this, but no offer to prove it. There is proof, that in 1817, Thomas H. Stewart was charged with six hundred acres of land, in Woodberry, but no warrantee is named, and it was sold for arrearages, due before 1817. Once for all, the counsel are bound to behave fairly to the court, and more, to themselves: state a point fairly, and occurring in the cause, and no lawyer in my district will say I ever avoided it; right or wrong, I give a positive and direct answer; but to perplex me with what is fact, and not fact, what is applicable, and has no application, is not right, and I object to it. If this, or any other court, refuses to answer a pertinent question, it is error, and I see symptoms of it becoming “ one of the most curious and cunning learnings of the law,” to put a record in such a state, as, that there may appear error, where there is none, or would have been none, if there had been fair dealing. With these observations, I pass over the second, third, fourth, ninth, and twelfth points, as stating positions, or asking questions not applicable to the present case; and in giving opinions on the other points, I will answer distinctly such points, intermingled with fiction in them, as are applicable to the state of facts before the court.</p> <p>5. and 10. I take these two together, as far as they, or either of them,'are applicable.- Part of the assumption of facts in the fifth, if it has any meaning, is not applicable to this case. The owner of the warrant is not before the court. No question as to him or his rights is trying. I hold, that lands may be sold for taxes, due! more than two years. If a tract has been concealed from the commissioners, they may, when they discover it, tax it for four years, and sell it. The owner may promise to pay, pass over a sale, and then not pay'. The lands may be sold thereafter, at the next two years’ sale. The land may not be bid to the tax and costs, and the commissioners may not choose to buy. They may postpone, and spll at the stated times fixed by law, at future periods.</p> <p>6. Nothing like this has occurred in this case; nothing is trying against Grove; he is not party to the suit, nor his tenant, and the plaintiff has expressly disclaimed his part; and there is no settling with Thomas H. Stewart, nor any thing like it. Long after the sale in question, and the plaintiff’s deed, Mr. Reed caused an entry to be made to Thomas H. Stewart’s credit, in his absence: nothing in this can be twisted to any application to this cause.</p> <p>7. The commissioners are to collect taxes from land held by patent, warrant, or improvement. The defendants themselves produced a draught of George Sevitz, and two other tracts — proved its situation, out of Porter township. The settlement on a part by Grove, or his tenant, not showing the warrant and survey under seal, will not in this case bar the plaintiff’s recovery.</p> <p>8. I suspect this is intended to mean more than meets the eye. To give the purchaser at treasurer’s sale a good title, the next day after he pays his money, and gets his deed, the whole system of assessment, &c. of taxes must be shown, and shown to be regular. But the act of 1815, is a short statute of limitation. After two years has expired, this is not at all requisite to be shown.</p> <p>9.. In my general charge, I have given a full and express opinion on this point, to which I refer, as my opinion on this point.</p> <p>11, 12, 13, 14, 15, 16. Unless the questions proposed to the court, in these points, were intended to be so subdivided, as to give trouble in writing answers, or to induce some oversight of some hair-breadth doctrine, I cannot conjecture why it was so frittered up. I repeat, that, as against the owner it is not necessary to state the effect of a mistake of the township, in assessment, warrant, advertisement, and deed. There is no proof that a tract exists, containing four hundred and twenty-five acres, sixty-nine perches, in the name of George Sevitz. This is a mark not easily mistaken — more certain than the township. It would avail to give title in a warrant, or deed, and in this case, against a trespasser without colour of title, we think, does not bar the plaintiff’s recovery.-</p> <p>17. The fact as proved is, that J. Grove claimed the south-east half of this tract, and no more; he had a settler on his part, and paid taxes for his part, and no more. This can in no way be. a payment of taxes on the residue. If a man buys one hundred acres, out of four hundred, and settles on them, and separates his part, he is not liable for the three hundred acres owned by another, and unsettled; and his settlement does not protect those three hundred acres from being sold as unseated land.</p> <p>The counsel for the defendant excepted to the opinion of the court; and, on the return of the record to this court, assigned the following errors:</p> <p>1. The court below erred, in admitting in evidence the deed from Samuel Steel, to William Wilson, dated the 18th of July, 1820, also the deed from Wilson to Shoenfelt.</p> <p>2. The court erred, in stating to the jury, that the defendant appeared as a naked trespasser, showing no title.</p> <p>3. The court erred, in stating that the defendant showed in evidence that he bought at commissioners’ sale, and produced no deed, nor paid taxes since the purchase, therefore, he must be considered as a trespasser.</p> <p>4. The court erred, in stating that the commissioners’ books, showing a purchase in 1812, by the defendant, without proof of payment of taxes since, is of no avail to him.</p> <p>5. - The court erred, in stating that the act of 1815 gives a good title, after two years from a sale.</p> <p>6. The court erred, in stating that the mistake of the township did not invalidate the sale, as against the defendant.</p> <p>7. The court erred, in answering the 1st point made by the defendant.</p> <p>8. The court erred, in the answer to the 2d point, made by the defendant, and in not answering the 2d, 3d, 4th, 9th, and 12th points.</p> <p>9. The court erred, in the answers given to the 5th, 6th, 7th, 8th, 9th, 10th, 11th, 12th, 13th, 15th, 16th, and 17th points, made by the defendant.</p> <p>10. General errors.</p>

<p>What parts of the act of the 8th April 1785, « providing further regulations, whereby to secure fair and equal proceedings in the land office,” are confined to the new purchase and what parts are co-extensive with the limits of the state.</p> <p>That part of the 9th section ofthe act above mentioned directing the survey to be made by actually going on the ground! and measuring the land, and marking the lines, is directory only, and is’satisfied by proof of marks on the ground, to Show the hand of the surveyor, though all the marked fines are not to be found at a distant day, when the survey is returned, the presumption is a violent one, and so ought to be left to the jury, that the survey was regularly made.</p> <p>Where there is a block of adjoining surveys made for .the same concern, and the exterior lines of the whole body are marked, it does not avoid the surveys and ■returns of each tract, that the division lines are not to be found; but it is necessary to prove this as a fact, by producing the documents ofthe title to the whole body.</p>

<p>The certificate of the acknowledgment of a deed by husband and wife, in 1812, by one who styles himself a justice of the peace of the said county, where no county is mentioned in the certificate, but the grantors are described in the body of the deed, as of a particular county, is good.</p> <p>Where both the vendor and vendee of land know of the existence of incumbrances, and all the circumstances attending them, and the vendee takes from - the vendor a deed, warranting particularly against those incumbrances, and gives his bond for the purchase money, it is no defence to an action on the bond, that the incumbrances are still existing.</p> <p>Evidence that a testator, by whose will legacies are charged upon his real and personal estate, left considerable personal estate, is admissible to raise a presumption that the legacies have been paid.</p>

'IN ERROR. This was a writ of error to the Court of Common Pleas of Cumberland county, and was argued by Carothers, for the plaintiff in error, and Metzger, contra. ,

<p>DEMURRER.</p> <p>Debt to July term, 1815, on a-judgment in the island of Barbadoes, in which Mark Richards, administrator de bonis non of Samuel Francis Lightfoot, deceased, was substituted for David, Brodie, administrator, &c., who died after the commencement of this suit against Abraham Bickley,. administrator of Thomas Bickley Polgreen, deceased, of the goods unadmiiiistered by Susanna Dorothy'Polgreen, his widow. ■</p> <p>The declaration was as follows:</p> <p>Abraham Bickley, administrator of the goods and chattels, rights and credits, which were of Thomas Bickley Polgreen, deceased, at-the time of his death, by Susanna Dorothy Polgreen, his widow, unadministered, was summoned to answer David Brodie, administrator of all and singular the goods and chattels, rights and credits, which were of Samuel Francis Lightfoot, deceased, at the time of his death, of a plea that he render to the said David Brodie the sum of twenty'thousand dollars, lawful money of the United States, which he unjustly detains from him; and whereupon the said David Brodie, by Benjamin Tilghman, his attorney, complains, for that whereas the said Samuel Francis Light-foot, heretofore, to wit, at p. Court of Common Pleas, in and for the island of Barbadoes, and within the jurisdiction of the said court, on the 25th day of February, in the year of our Lord, 1792, by the consideration and judgment of the said court, recovered-against the said Susanna Dorothy Poigreen, administratrix of all and singular the goods and chattels, rights and credits, ¡of the said Thomas Bickley Poigreen, as well the sum of two thousand pounds, current money of the said island of Barbadoes, which, in and by the said court, were then and there adjudged to the said Samuel Francis Lightfoot, by reason of the non- payment of a certain debt, due upon a certain bond or obligation under seal, made and executed by the said Thomas Bickley Poigreen, on the 5th day of August, in the year of our Lord 1772, to the said Samuel Francis Lightfoot; as also the sum of ten pounds, current money of the said island of Barbadoes, for his costs and charges, by him, about his said .suit, expended in that behalf, to the said Samuel Francis Lightfoot, by the said court, of his own assent then and there adjudged; whereof the same Susanna JDorothy Poigreen, administratrix as aforesaid, is .convicted ; which said judgment still remainá in that court in full force and effect, in no wise satisfied or annulled. And the said David Bt'o(lie in fact saith, that the debt, damages, costs, and charges aforesaid, in form aforesaid recovered, are of great value, to wit, of the value of six thousand lour hundred and thirtv-tvvo dollars, lawful money of the United States, to wit, at the county aforesaid; and that neither he, the said David Brodie, since the decease ' of the said Samuel Francis Lightfoot, or the said Samuel Francis Lightfoot during his life time, have, obtained execution' or received payment of the , said judgment, or any part thereof, from the said Susanna Dorothy Poigreen, during her life time, or from the said Abraham Bickley, since the death , of the said Susanna Dorothy Poigreen, by reason whereof an action hath accrued to the said David Brodie, to demand and have of and from the said Abraham Bickley, the said sum of six thousand four hundred and thirty-two dollars above named. Nevertheless the said Abraham Bickley hath not, (although often requested,) paid the said sum of money, or any part thereof, to the said Samuel Francis Lightfoot, during his life time, or to the said David Brodie, since the death of the the said Samuel Francis Lightfoot, (to which said David-Brodie, after the decease of the said Samuel Francis Lightfoot, to wit, on the 8th day June, A. D. 1815, administration of all and singular, the goods and chattels, rights and credits, which were of the said Samuel Francis Lightfoot at the time of his death, who died intestate, was in due form of law, granted by the register of wills for the city and county of Philadelphia,) but he to do so hath hitherto wholly refused, and still doth refuse, to the damage of the said David Brodie of twenty thousand dollars, and thereof he brings suit, &c. And the said David Brodie brings here into court the letters of administration, &c.</p> <p>The defendant pleaded nil debet, payment, plena administravit, and set off, and also that the cause of action did not accrue within six years before the commencement of this suit. To this last plea there was a demurrer and joinder.</p>

<p>MOTION FOR A NEW TRIAL.</p> <p>This case was argued by Biddle, in favour of the motion for a new trial, and Sykes, for the commonwealth.</p>

<p>IN ERROR.</p> <p>Error to the Court of Common Pleas of Philadelphia county, where judgment was rendered in favour of the commonweálth. It was an action of debt for the sum of eleven dollars brought by the commonwealth of Pennsylvania against Charles Biddle. The defendant demurred to the declaration, and the question was whether the act of assembly laying a duty on the retailers of foreign merchandize, passed the 2d of dlpr.il, 1821, (7 Slate Laws, 474, and the supplement thereto, passed the 4th of March, 1824, Pamph. Ed. 32,) were void, because contrary to the constitution of the United States, or of the state of Pennsylvania.</p> <p>By the first aet, every person w"hoshall deal in the selling of any goods, wares, or merchandize, wines or distilled liquors, except such as are of the growth, produce, or.manufacture of the' United States, (excepting sales made by auctioneers appointed by law, and by licensed tavern keepers,) are required to take out a license for vending such foreign merchandize or liquors, for which licenses certain duties, specified in the said act, were to be paid under the penalty of fifty dollars, to be recovered by indictment. There was an exception, also in favour of importers of goods, &c. who sold them in the original cask, case, box, or package in . which they were imported. The supplement abolished the distinction between the importer and other sellers of foreign merchandize, &c. and took away the penalty of fifty dollars, instead of which was substituted an action before an alderman or justice, for the amount of the duty payable by the license, with the addition of ten per cent, thereon; with an appeal from the judgmentof the said aider-man or justice, provided the person intending to appeal, should first declare on oath or affirmation, that he verily believed injustice had been done him, and that the said appeal was not made for the purpose of delay. In the present instance a suit was brought before an alderman, who gave judgment for the commonwealth, whereupon the. defendant appealed to the Court of Common Pleas. The defendant demurred to the declaration in the Common Pleas, and. judgment was again rendered for the commonwealth, on which judgment this writ of error was brought to this court. „</p>

CASE STATED. In the year 1812, Jacob Johnson and Benjamin Warner, partners, under the firm of Johnson and Warner, put into the stores of Thomas P. Cope, the plaintiff, a large quantity of hempen yarns, cordage, and twine, and agreed to pay for the same a certain rate of storage per month. Subsequently, Thomas P. Cope was authorized by Johnson and Warner, to sell the same as their agent and factor.

<p>This case was tried in this court at nisi prius, and a verdict was taken for the plaintiff, subject to the opinion of the court in bank. ,</p>

IN ERROR. Error to the Court of Common Pleas of the county of Philadelphia. The plaintiff in error was plaintiff below. The plaintiff, James Hobbs, instituted this action of trespass guare clausum fregit against the defendant, H. Geiss, before Samuel Badger, Esq., one of the aldermen of the city of Philá-, delphia. Damages were claimed by the plaintiff, and judgment was rendered by the alderman in his favour for fifty dollars.

IN ERROR. Error to the District Court for the city and county of Philadelphia. It was an action of trespass, assault and battery, and false imprisonment, brought by the plaintiff William Bates, against John Shaw, Esq. a justice of the peace in the county of Philadelphia, for a wrong committed by him in the execution of his office.

<p>CASE STATED.</p> <p>This action was brought by the President and Directors of. the Schuylkill Bridge Company, against Leonard Frailey, a collector of county taxes, and the only question was, whether the Permanent Bridge, over the river Schuylkill, at the extremity of'Market Street, was an object of taxation, for county rates and levies, under the act of the 11th of April, 1799.</p>

<p>An indictment was found against the defendant, Britton Evans, in the court of Quarter Sessions of Philadelphia county, and being removed to this court by certiorari, was tried before Duncan, J., at nisiprius, in April, 1825, and a verdict of guilty returned by the jury.</p> <p>The indictment charged, that Britton Evans, late of the county aforesaid, justice of the peace, on the 5th of April, in the year of our Lord, 1824, at the county aforesaid, and within the jurisdiction of this court, and then and there being in the exercise of his office of a justice of the peace in and for the said county, did unlawfully, unjustly, corruptly, and extorsively demand, exact, and receive from one James MiCoy, then and there being arrested and brought before the said Britton Evans, as a justice of the peace as aforesaid, and charged with being engaged in a riot, the sum of two dollars and eight cents, under colour and pretence that the said sum of money was payable to him, the said Britton Evans, as fees in the case of the said James M‘Coy, but well knowing that no such sum of money was by right and by law demandable from him the said James M‘Coy; whereupon the said inquest, upon their oaths and affirmations respectively, do say, that the said Britton Evans has committed a misdemeanor in office, to the great damage of him the said James M‘Coy, contrary to the form of the act of assembly, to the evil example of all others in like case offending, and against the peace and dignity of the commonwealth of Pennsylvania.</p> <p>The defendant now moved in arrest of judgment, for the following reasons:</p> <p>1. Because no indictment can be maintained at common law in Pennsylvania, for extortion, against a justice of the peace, the acts of ¡assembly of the 2Sth of March, 1814, and the 22d of February, 1821, entitled, “ An act establishing a fee bill,” and “ An act to alter and amend the fee bill,” providing the only remedy for such offence.</p> <p>2. Beeause.it is not stated in the indictment what sum or sums were properly due to the said Evans by law for his fees in the case of James MlCoy; or if no fee at all were due him, the fact is not, as it should be, set forth in the indictment.</p>

IN ERROR. The first of these cases was a writ of error to the Court of Common Pleas of Montgomery county, in an amicable suit, brought by Mel Thomas and others, plaintiffs below, against the Schuyl-Jeill Navigation Company, and the matters in dispute were referred to referees, under the act of assembly by which the company was incorporated, and its several supplements. The referees reported various sums to the plaintiffs below.

<p>Extent of the remedy of cestui que trust against trustee in Pennsylvaniain assumpsit for money had and l’eceived.</p>

IN ERROR. This suit was brought in the Court of Common Pleas of Chester county, in debt to recover a legacy charged upon land.

<p>IN ERROR.</p> <p>Error to the Court of Common Pleas of Delaware county, where judgment was rendered in favour of the defendant in error, the plaintiff below, on a case stated in a suit by William G. Flower against Jane Graham, executrix of William Graham, who was executor of Dorothy Smith. The court below gave judgment for the plaintiff. ,</p>

<p>In assumpsit against executors, upon a consideration existing in the lifetime of the testator',-the declaration need not aver assets.</p> <p>In a suit by one surety against another for contribution of money recovered against the plaintiff, the declaration need not aver notice to the defendant of the former suit.</p> <p>A count on an assumption by the testator in his lifetime may be joined with one founded on an assumption by the executors after his death.</p>

<p>If on the plea of payment, the defendant is precluded at the trial, from giving' evidence of special matter, by omission to give previous notice thereof, he may amend his plea under the act of assembly, and set forth the special matter in such plea, and it is error in the court to refuse him permission to do so.</p>

CERTIORARI. The proceedings in the case of a road from Buttomoood lane to. Green street, being a continuation of Julianna street in the Northern Liberties in the county of Philadelphia, were removed to to this court from the Quarter Sessions by certiorari, and several exceptions were taken here. One however only was relied on namely, that the viewers had not in their report nor any part of their proceedings^ referred to the improvements through which the road passed.

<p>This was a writ of error to the District Court for the city and, county of Philadelphia, in a suit brought by Simeon Crane, plaintiff below, against Joshua Wright, surviving partner of Samuel Wright, jun. deceased, defendant below, in which a verdict and judgment were rendered in favour of the plaintiff below.</p> <p>It was an action for goods sold and delivered. There was no question as to the sale and delivery of the goods by the plaintiff to Samuel Wright, jun., but Joshua Wright, the defendant, denied that he was a partner of Samuel, and that was the point in dispute. On the 22d December, 1812, the affidavit of Richard Peters, jun. attorney for the plaintiff, was filed, stating that he verily believed that certain papers material to the issue between the parties, among which was a deed containing articles of partnership between the defendant and Samuel Wright, yin., were in the possession'or power of the defendant. Whereupon a rule returnable on the Saturday following was laid upon the defendant to show cause why he should not produce the said papers on the trial of the cause. And on the 20th of February, 1823, the rule was made absolute. Gn the 25th of February, 1S23, the court made an order that the defendant should produce the said papers on the trial of the cause, or satisfy the court why it is not in his power to do so. On the 19th of Jlpril, 1S23, a rule was entered for taking the depositions of witnesses, in pursuance of which several depositions were taken.</p> <p>On the 3d of November,• 1823, a special jury was sworn in the cause, and the solemn affirmation of the defendant was produced, stating, “ that he hath not in his possession, custody, or power a certain article of agreement, said to be executed by him the said defendant and Samuel Wright, jun. relating to a partnership or concern in lumber, dated the 18th of June, 1816, as called for by the annexed fule and that it is not in his power to produce the same.” The court thereupon gave the following judgment. “It is considered by the court that the defendant has not sufficiently complied with the order of the court calling on him to produce books and papers, and are not satisfied with the affidavit produced by his counsel to excuse him for non-compliance, and therefore they do award judgment to the plaintiff by default, and discharge the present jury from the said cause, and on motion of the plaintiff’s attorney do make an order in the nature of a writ of inquiry, to charge the jury attending at this present court to inquire of the damages and costs sustained by the plaintiff in this action.” In pursuance of the interlocutory judgment, a jury was sworn who assessed the plaintiff’s damages and costs, for which final judgment was entered.</p> <p>Several errors were assigned in this record.</p> <p>1. That the order for the production of certain books and papei’s by the defendant was illegal.</p> <p>2. That the judgment by default was illegal.</p> <p>' 4. That all the proceedings after the judgment by default were illegal.</p>

IN ERROR. Error to the Court of Common Pleas of Chester county. This was an action on the case, for goods sold and delivered, brought by Jacob Pusey, the plaintiff below and defendant in error, against John Alexander and William Ralston, the plaintiffs in error. The plea was non-assumpsit and payment with leave to give the special matters in evidence. No notice of special matter was given to the plaintiff. The suit was marked on the docket for the use of Benedict Darlington.